Common use of Excess Parachute Payments Clause in Contracts

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditors.

Excess Parachute Payments. If it is determined (as hereafter provideda) Notwithstanding any other provision of this Agreement, in the event that the amount of payments or other benefits payable to the Executive under this Agreement (including, without limitation, the acceleration of any payment or distribution the accelerated vesting of any payment or other benefit), together with any payments, awards or benefits payable under any other plan, program, arrangement or agreement maintained by the Company or any Employer to or for the benefit one of the Executiveits Affiliates, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing would constitute an "excess parachute payment" (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”Code), then, in the event that payments under Section 5.02 of this Agreement shall be reduced (by the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Paymentsminimum possible amounts) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments until no amount payable to the Executive under this Agreement constitutes an "excess parachute payment" (within the meaning of Section 280G of the Code); provided, however, that no such reduction shall be reducedmade if the net after-tax payment (after taking into account federal, in state, local or other income, employment and excise taxes) to which the order in which they are due to Executive would otherwise be paidentitled without such reduction would be greater than the net after-tax payment (after taking into account federal, until the Parachute Value of all Payments paid state, local or other income, employment and excise taxes) to the Executive, in Executive resulting from the aggregate, equals the Safe Harbor Amount, and receipt of such payments with such reduction. (b) if All determinations required to be made under this Section 12.10, including whether a payment would result in an "excess parachute payment" and the reduction assumptions to be utilized in arriving at such determinations, shall be made by an accounting firm designated by the Company (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive as requested by the Company or the Executive. All fees and expenses of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements Accounting Firm shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined borne solely by the Company and shall be paid by the Company’s outside auditors. Absent manifest error, all determinations made by the Accounting Firm under this Section 12.10 shall be final and binding upon the Company and the Executive.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for BHI or the Company (as hereafter provided) the “Accountants”), that any payment payment, benefit or distribution by the Company Company, BHI or any Employer of their respective subsidiaries or affiliates (a “Payment”) constitute “parachute payments” under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the “Parachute Amount”) exceeds 2.99 times the Executive’s “base amount”, as defined in Section 280G(b)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Executive shall be reduced to the terms of this Agreement or otherwise pursuant extent necessary so that the Parachute Amount is equal to or by reason of any other agreement2.99 times the Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after tax basis, that the Executive would be entitled to retain upon his receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 12 results in a reduction of the payments that would otherwise be paid to Executive except for the application of clause (a) of this Section 12, Executive may then elect, in his sole discretion, which and how much of any particular entitlement shall be eliminated or reduced and shall advise the Company in writing of his election within ten days of the meaning determination of the reduction in payments. If no such election is made by Executive within such ten-day period, the Company may elect which and how much of any entitlement shall be eliminated or reduced and shall notify Executive promptly of such election. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 12 (“Overpayment”) or that additional payments which are not made by the Company pursuant to any similar tax imposed clause (a) of this Section 12 should have been made (“Underpayment”). In the event that there is a final determination by state or local lawthe Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall be repaid by Executive to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or penalties with respect a change in the provisions of the Code or regulations pursuant to which an Underpayment arises, any such excise tax (such tax Underpayment shall be promptly paid by the Company to or taxesfor the benefit of Executive, together with any such interest or penalties, are hereafter collectively referred to as at the “Excise Tax”), then, applicable Federal rate provided for in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction Section 7872(f)(2) of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsCode.

Excess Parachute Payments. If it is Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment” within the meaning of Code Section 280G but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (as hereafter provided) taking into account the excise tax imposed pursuant to Code Section 4999, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). The fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 3.8 will not of itself limit or otherwise affect any other rights of Executive other than pursuant to this Agreement. In the event that any payment or distribution by benefit intended to be provided under this Agreement is required to be reduced pursuant to this Section 3.8, the Company reduction shall be made in the following order: (a) first reducing, if any, those payments or any Employer benefits which have a higher Parachute Value than actual present value, (b) then, to the extent necessary, reducing cash payments or for benefits; and (c) then, to the benefit extent necessary, reducing those payments or benefits having the next highest ratio of Parachute Value to actual present value of such payments or benefits as of the Executive, whether paid or payable or distributed or distributable pursuant to date of the terms change of control (as defined under Code Section 280G). For purposes of this Agreement or otherwise pursuant to or by reason of any other agreementSection 3.8, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any present value shall be determined in accordance with Section 280G(d)(4) of the foregoing (Code. For purposes of this Section 3.8, the “Parachute Value” of a payment or benefit means the present value as of the date of the change of control of the portion of such payment that constitutes a “Payment”parachute payment” under Section 280G(b)(2) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change Code, as valued in ownership or control” of the Company, within the meaning of accordance with Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsinterpretive guidance thereunder.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on on, or the vesting or exercisability of of, any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditors.

Excess Parachute Payments. If it is determined (as hereafter provided) that Notwithstanding any payment or distribution by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms provision of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program agreement or arrangement, plan to the contrary (including without limitation any stock optionlesser protection of Executive under any equity-based award agreement), stock appreciation right if any amount or similar right, benefit to be paid or the lapse provided under this Agreement or termination of any restriction on other agreement or the vesting or exercisability of any of the foregoing (a “Payment”) plan would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being an “contingent on a change in ownership or controlexcess parachute payment” of the Company, within the meaning of under Section 280G of the Code (an “Excess Parachute Payment”) (including after taking into account the value, to the maximum extent permitted by Section 280G of the Code, of the covenants herein), but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement and any other agreements and plans will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will not be made if such reduction would result in Executive receiving an amount determined on an after-tax basis, taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto) or to , any similar tax imposed by any comparable provision of state or law and any applicable federal, state and local law, or any interest or penalties with respect to such excise tax income and employment taxes (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxAfter-Tax Amount”), then, in ) that is less than 90% of the event After-Tax Amount of the payments and benefits that the after-tax value of all Payments he would have received without regard to this clause. Whether requested by the Executive (or the Company, the determination of whether any reduction in such after-tax value payments or benefits to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive provided under this Agreement shall be reducedor otherwise is required pursuant to the preceding sentence, in and the order in which they are due value to be paid, until the Parachute Value of all Payments paid assigned to the Executive’s covenants herein for purposes of determining the amount, in the aggregateif any, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions Excess Parachute Payment will be made at the expense of the Payments, payable under this Agreement, Company by the Company’s independent accountants or benefits consultant. The fact that the Executive’s right to zero would not payments or benefits may be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions reduced by reason of the Payments payable to limitations contained in this Section will not of itself limit or otherwise affect any other rights of the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, any other agreement or plan. In the event that any payment or benefit intended to zero would not be sufficient provided is required to reduce the Parachute Value of all Payments be reduced pursuant to the Safe Harbor Amountthis Section, then non-cash portions the Company shall in good faith determine the appropriate treatment of payments or benefits, consistent with the Payments shall be reduced, in requirements of Section 409A that produces the order in which they are due to be paid, until the Parachute Value of all Payments paid to most advantageous economic outcome for the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section and its determination shall be determined final and binding on the Executive. The Company will provide the Executive with all information reasonably required or requested by the Company and Executive to demonstrate to the Company’s outside auditorsExecutive that it has complied with the immediately preceding sentence.

Excess Parachute Payments. If it is determined (as hereafter providedi) that In the event any payment or distribution by the Company or any Employer granted to or for the benefit of the Executive, whether paid or payable or distributed or distributable Executive pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would is determined to be subject to the any excise tax (“Excise Tax”) imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of to such Section), the CompanyCompany shall pay to Executive, within no later than the meaning of Section 280G of the Code (or time any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties Excise Tax is payable with respect to such Payment (through withholding or otherwise), an additional amount (a “Gross-Up Payment”) which, after the imposition of all income, employment, excise tax (such tax or and other taxes, together with any such penalties and interest or penaltiesthereon, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments is equal to the Executive sum of (such after-tax value to reflect the deduction of A) the Excise Tax on such Payment plus (B) any penalty and all interest assessments associated with such Excise Tax. (ii) The determinations to be made with respect to this Section 5(g) shall be made by a certified public accounting firm designated by the Company and reasonably acceptable to Executive and Executive may rely on such determination in making payments to the Internal Revenue Service. (iii) Notwithstanding anything herein to the contrary, any Gross-Up Payment or any payment of any income or other taxes on such Paymentsto be paid by the Company under this Section 5(g) would, in shall be made by the aggregate, be less Company no later than the after-tax value to end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the Executive related taxes. Any costs and expenses incurred by the Company on behalf of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement Section 5(g) due to any tax contest, audit or litigation shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company as incurred and, in any event, no later than the end of Executive’s taxable year following Executive’s taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Executive’s taxable year following Executive’s taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the Company’s outside auditorscontest or litigation.

Excess Parachute Payments. (i) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Severance Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “Excise Tax”), thenthen the 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 interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Severance Payments. (ii) Subject to the provisions of Section 6(a)(i) hereof, all determinations required to be made under this Section 6, including whether an Excise Tax is payable by the Executive and the amount of such Excise 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 Termination 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 Excise 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 Excise 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 Excise Tax on ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, local income or other tax return. Any 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 Services 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 Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law 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 6(a) hereof and the Executive thereafter is required to make a payment of any Excise 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. (iii) The federal, state and local income or other 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 consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by the Executive. The Executive shall make proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his/her federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, 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, or corresponding state or local tax return, if relevant, the Accounting Firm determines 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. (iv) 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 6(a) hereof. (v) The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Sections 6(a)(ii) and (iv) 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/her payment thereof. (b) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement constitutes an “excess parachute payment,” within the meaning of Section 280G(b)(1) of the Code, the Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but no later than 10 business days after the 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. 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 writing 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; (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 value basis, for and against any Excise Tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (c) The Company shall control all Payments 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 ▇▇▇ for a refund or contest the claim in any permissible manner, and the 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 Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive (such on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax value basis, from any Excise Tax or other tax (including interest and penalties with respect thereto) imposed with respect to reflect such advance or with respect to any imputed income with respect to such advance; and provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a corporate deduction would be disallowed pursuant to Section 280G of the Code and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the 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 (including any other tax position of the Executive unrelated to matters covered hereby). (d) If, after the receipt by the Executive of an amount advanced by the Company in connection with the contest of the Excise Tax and all income claim, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or other credited thereon after taxes on applicable thereto); provided, however, if the amount of that refund exceeds the amount advanced by the Company or it is otherwise determined for any reason that additional amounts could be paid to the Named Executive without incurring any Excise Tax, any such Payments) wouldamount will be promptly paid by the Company to the named Executive (or shall be applied to reduce any amount that Executive would otherwise be required to pay the Company). If, in after the aggregate, be less than the after-tax value to receipt by the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined an amount advanced by the Company in connection with an Excise Tax claim, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company’s outside auditorsCompany 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 advance shall be forgiven and shall not be required to be repaid and shall be deemed to be in consideration for services rendered after the date of the Termination.

Excess Parachute Payments. (i) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Severance Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “"contingent on a change in ownership or control” " of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “"Excise Tax”"), thenthen the 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 interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Severance Payments. (ii) Subject to the provisions of Section 6(a)(i) hereof, all determinations required to be made under this Section 6, including whether an Excise Tax is payable by the Executive and the amount of such Excise 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 Termination 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 Excise 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 Excise 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 Excise Tax on his/her federal, state, local income or other tax return. Any 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 Services 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 Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law 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 6 hereof and the Executive thereafter is required to make a payment of any Excise 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. (iii) The federal, state and local income or other 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 consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by the Executive. The Executive shall make proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his/her federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, 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, or corresponding state or local tax return, if relevant, the Accounting Firm determines 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. (iv) 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 6(a) hereof. (v) The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Sections 6(a)(ii) and (iv) 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/her payment thereof. (b) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement constitutes an "excess parachute payment," within the meaning of Section 280G(b)(1) of the Code, the Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but no later than 10 business days after the 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. 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 writing 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; (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 value basis, for and against any Excise Tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (c) The Company shall control all Payments 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, pay the tax claimed and direct the Executive to ▇▇▇ for a refund or direct the Executive to contest the claim in any permissible manner, and the 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 Company shall determine; provided, however, that if the Company pays such claim and directs the Executive to ▇▇▇ for a refund, the Company shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or other tax (including interest and penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment; and provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company's control of the contest shall be limited to issues with respect to which a corporate deduction would be disallowed pursuant to Section 280G of the Code and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the 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 (including any other tax position of the Executive unrelated to matters covered hereby). (d) If, after payment by the Company in connection with the contest of the Excise Tax claim, the Executive becomes entitled to receive any refund with respect to such claim, the 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 paid by the Company or it is otherwise determined for any reason that additional amounts could be paid to the Executive without incurring any Excise Tax, any such amount will be promptly paid by the Company to the Executive (or shall be applied to reduce any amount that Executive would otherwise be required to pay the Company). If, after payment by the Company in connection with an Excise Tax claim, a determination is made that the Executive shall not be entitled to any refund with respect to such after-tax value claim and the Company does not notify the Executive in writing of its intent to reflect contest the deduction denial of such refund prior to the expiration of 30 days after such determination, the Company shall have no claim against the Executive for the amount paid and such amount shall be deemed to be in consideration for services rendered after the date of the Excise Tax and all income or other taxes on such PaymentsTermination. (e) wouldNotwithstanding the foregoing, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, payment described in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (cSection 6(c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be is determined by the Company to be impermissible under applicable law, then no such payment shall be made, nor shall the Company direct the Executive to pay the tax claimed and the Company’s outside auditors▇▇▇ for a refund.

Excess Parachute Payments. If it is determined Notwithstanding any other provision of this Agreement, if either the Company or the Executive receives confirmation from the Company’s independent tax counsel or its certified public accounting firm (as hereafter providedthe “Tax Advisor”) that any portion of any payment or distribution by the Company or any Employer a related entity to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to of any benefit received by the terms of Executive, under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (each a “Payment”) would be subject considered to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being be an “contingent on a change in ownership or controlexcess parachute payment” of the Company, within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, (the “Code”) or any successor provision theretoor similar statute then in effect, then the Payments (under this Agreement or otherwise) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax shall be reduced (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxReduction”), then) to the highest amount that, in the event that opinion of the after-tax value of all Payments Tax Advisor, may be paid to the Executive (such after-tax value by the Company without having any portion of any Payment treated as an “excess parachute payment;” provided that the Company may elect, in its sole and absolute discretion, not to reflect apply the deduction of the Excise Tax and all income or other taxes on such Payments) wouldReduction if, in the aggregateopinion of the Tax Advisor, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) total Payments prior to the cash portions of Reduction is greater than the Payments payable after-tax value to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction total Payments are determined taking into account the Reduction. For purposes of determining the cash portions after-tax value of the Payments, payable under this Agreement, (i) the Executive shall be deemed to zero would not be sufficient to reduce pay income taxes at the Parachute Value highest rate of all Payments to federal income tax and the Safe Harbor Amount, then any cash portions highest rate or rates of state and local income taxes in the state and locality of the Executive’s domicile for income tax purposes for the taxable year in which the total Payments payable to will be made, provided that the state and local income tax rate shall be determined assuming that such taxes are fully deductible for federal income tax purposes, (ii) the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in deemed to pay employment taxes at the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amountapplicable rate under Code Section 3101(b), and (ciii) if the reduction of all cash portions of Executive shall be deemed to pay excise tax at the Paymentsapplicable rate under Code Section 4999. In the event the Reduction is applied, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, reduced by the Company in its reasonable discretion in the order in which they following order: (i) reduction of any Payments that are due subject to be paidCode Section 409A on a pro-rata basis or such other manner that complies with Code Section 409A, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be as determined by the Company Company, and the Company’s outside auditors.(ii) reduction of any Payments that are exempt from Code Section 409A.

Excess Parachute Payments. If it is determined Notwithstanding any other provision of this Agreement, if either the Company or the Executive receives confirmation from the Company’s independent tax counsel or its certified public accounting firm (as hereafter providedthe “Tax Advisor”) that any portion of any payment or distribution by the Company or any Employer a related entity to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to any benefit received by the terms of Executive, under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (each a “Payment”) would be subject considered to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being be an “contingent on a change in ownership or controlexcess parachute payment” of the Company, within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, (the “Code”) or any successor provision theretostatute then in effect, then the Payments (under this Agreement or otherwise) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax shall be reduced (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxReduction”), then) to the highest amount that, in the event that opinion of the after-tax value of all Payments Tax Advisor, may be paid to the Executive (such after-tax value by the Company without having any portion of any Payment treated as an “excess parachute payment;” provided that the Company may elect, in its sole and absolute discretion, not to reflect apply the deduction of the Excise Tax and all income or other taxes on such Payments) wouldReduction if, in the aggregateopinion of the Tax Advisor, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) total Payments prior to the cash portions of Reduction is greater than the Payments payable after-tax value to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction total Payments are determined taking into account the Reduction. For purposes of determining the cash portions after-tax value of the Payments, payable under this Agreement, (i) the Executive shall be deemed to zero would not be sufficient to reduce pay income taxes at the Parachute Value highest rate of all Payments to federal income tax and the Safe Harbor Amount, then any cash portions highest rate or rates of state and local income taxes in the state and locality of the Executive’s domicile for income tax purposes for the taxable year in which the total Payments payable to will be made, provided that the Executive under any other agreements, policies, plans, programs or arrangements state and local income tax rate shall be reduced, in the order in which they determined assuming that such taxes are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amountfully deductible for federal income tax purposes, and (cii) if the reduction of all cash portions Executive shall be deemed to pay employment taxes at the applicable rate under Section 3101(b) of the Payments, payable pursuant to this Agreement or otherwise, to zero would not Code. The Reduction shall be sufficient to reduce the Parachute Value of all Payments applied to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be any manner determined by the Company and the Company’s outside auditorsin its reasonable discretion.

Excess Parachute Payments. If it is determined (as hereafter providedi) that Notwithstanding anything in this Agreement to the contrary, if any payment of the payments or distribution benefits provided or to be provided by the Company or any Employer to Executive or for the Executive’s benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant (“Covered Payments”) are determined to or by reason constitute “excess parachute payments” within the meaning of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any Section 280G of the foregoing (a “Payment”) would Code and would, but for this Section 15.L be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, law or any interest or penalties with respect to such excise tax taxes (such tax or taxescollectively, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), thenthen the Covered Payments shall either (a) be paid in full or (b) be reduced (but not below zero) to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax, in the event that whichever of (a) or (b) maximizes the after-tax value results applicable to Executive. All determinations required to be made under this Section 15.L, including whether a payment would result in an “excess parachute payment” and the assumptions utilized in arriving at such determination, shall be made in writing by an accounting firm selected by Employer, which writings shall be shared with Executive. (ii) If a reduction in the Covered Payments is required by the foregoing provisions of all this Section 15.L, the reduction shall occur in the following order: (i) reduction of cash payments for which the full amount is treated as a parachute payment; (ii) cancellation of accelerated vesting (or, if necessary, payment) of cash awards for which the full amount is not treated as a parachute payment; (iii) cancellation of any accelerated vesting of equity awards; and (iv) reduction of any continued employee benefits. In selecting the equity awards (if any), for which vesting will be reduced under clause (iii) of the preceding sentence, awards shall be selected in a manner that maximizes the after-tax aggregate amount of Covered Payments, provided that if (and only if) necessary in order to avoid the imposition of an additional tax under Section 409A of the Code, awards instead shall be selected in the reverse order of the date of grant. In no event shall Executive have any discretion with respect to the ordering of payment reductions. (iii) If the Covered Payments to the Executive (such after-tax value to reflect the deduction are reduced in accordance with this Section 15.L, as a result of the Excise Tax and all income or other taxes on such Payments) would, uncertainty in the aggregateapplication of Section 4999 of the Code at the time of the initial reduction under Section 15.L, be less than the after-tax value it is possible that Covered Payments to the Executive of which will not have been made by the Safe Harbor Amount, Employer should have been made (a“Underpayment”) the cash portions of the or that Covered Payments payable to the Executive under this Agreement which were made should not have been made (“Overpayment”). If an Underpayment has occurred, the amount of any such Underpayment shall be reducedpromptly paid by the Employer to or for the benefit of the Executive. In the event of an Overpayment, in then the order in which they are due to be paid, until the Parachute Value of all Payments paid Executive shall promptly repay to the Executive, in Employer the aggregate, equals amount of any such Overpayment together with interest on such amount (at the Safe Harbor Amount, and (b) if same rate as is applied to determine the reduction present value of payments under Section 280G of the cash portions of Code or any successor thereto), from the Payments, payable under this Agreement, to zero would not be sufficient to reduce date the Parachute Value of all Payments reimbursable payment was received by the Executive to the Safe Harbor Amount, then any cash portions of date the Payments payable same is repaid to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsEmployer.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for BHI or the Company (as hereafter provided) the “Accountants”), that any payment payment, benefit or distribution by the Company Company, BHI or any Employer of their respective subsidiaries or affiliates (a “Payment”) constitute “parachute payments” under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the “Parachute Amount”) exceeds 2.99 times Executive’s “base amount”, as defined in Section 280G(h)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Executive shall be reduced to the terms of this Agreement or otherwise pursuant extent necessary so that the Parachute Amount is equal to or by reason of any other agreement2.99 times Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after tax basis, that Executive would be entitled to retain upon Executive’s receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 12 results in a reduction of the payments that would otherwise be paid to Executive except for the application of clause (a) of this Section 12, each particular entitlement of Executive shall be eliminated or reduced as follows: (i) first all cash payments, pro rata; and then (ii) all remaining benefits, pro rata. Within any of these categories, a reduction shall occur first with respect to amounts that are not deemed to constitute a “deferral of compensation” within the meaning of Code Section 409A (“Nonqualified Deferred Compensation”) and then with respect to amounts that are treated as Nonqualified Deferred Compensation, with such reduction being applied in each case to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 12 (‘‘Overpayment”) or that additional payments which are not made by the Company pursuant to any similar tax imposed clause (a) of this Section 12 should have been made (“Underpayment”). In the event that there is a final determination by state or local lawthe Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made and that repayment will eliminate any interest or penalties with respect to such excise tax (otherwise due under Section 4999 of the Code, any such tax Overpayment shall be repaid by Executive to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or taxesa change in the provisions of the Code or regulations pursuant to which an Underpayment arises, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive, together with any such interest or penalties, are hereafter collectively referred to as at the “Excise Tax”), then, applicable Federal rate provided for in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction Section 7872(f)(2) of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsCode.

Excess Parachute Payments. If it is determined Subject to a Severance Agreement between Executive and the Company approved by the Board of Directors or the Compensation Committee of ABM Industries Incorporated, if any amount or benefit to be paid or provided under the ABM Severance Policy, an equity award, and/or any other agreement between Executive and the Company would be an Excess Parachute Payment but for the application of this sentence, then the payments and benefits to be paid or provided under the Severance Program, equity award, and/or any other agreement will be reduced to the minimum extent necessary (as hereafter providedbut in no event to less than zero) so that no portion of any such payment or distribution by the Company or any Employer to or for the benefit of the Executivebenefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreementas so reduced, policyconstitutes an Excess Parachute Payment; provided, planhowever, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of that the foregoing (a “Payment”) reduction will not be made if such reduction would be subject to result in Executive receiving an amount determined on an after-tax basis, taking into account the excise tax imposed by pursuant to Section 4999 of the Code (Code, or any successor provision thereto, any tax imposed by any comparable provision of state law and any applicable federal, state and local income and employment taxes (the “After-Tax Amount”) less than 90% of the After-Tax Amount of the severance payments Executive would have received under the Company’s Severance Policy or under any other agreement without regard to this clause. Whether requested by reason of being “contingent on a change in ownership the Executive or control” of the Company, within the meaning determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence, and the value to be assigned to the Executive’s covenants in Section 5 hereof for purposes of determining the amount, if any, of the “excess parachute payment” under Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as will be made at the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction expense of the Excise Tax and all income Company by the Company’s independent accountants or other taxes on such Payments) would, in the aggregate, benefits consultant. The fact that Executive’s right to payments or benefits may be less than the after-tax value to the Executive reduced by reason of the Safe Harbor Amount, (a) the cash portions limitations contained in this paragraph will not of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value itself limit or otherwise affect any other rights of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs agreement. In the event that any payment or arrangements shall be reduced, in the order in which they are due benefit intended to be paid, until the Parachute Value of all Payments paid provided is required to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable be reduced pursuant to this Agreement or otherwiseparagraph, Executive will be entitled to zero would designate the payments and/or benefits to be so reduced in order to give effect to this paragraph, provided, however, that payments that do not constitute deferred compensation within the meaning of Section 409A will be sufficient reduced first. The Company will provide Executive with all information reasonably requested by Executive to reduce permit Executive to make such designation. In the event that Executive fails to make such designation within 10 business days after receiving notice from the Company of a reduction under this paragraph, the Company may effect such reduction in any manner it deems appropriate. The term “Excess Parachute Value of all Payments Payment” as used in this paragraph means a payment that creates an obligation for Executive to the Safe Harbor Amount, then non-cash portions pay excise taxes under Section 280G of the Payments shall be reducedInternal Revenue Code of 1986, in the order in which they are due to be paidas amended, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsor any successor statute.

Excess Parachute Payments. If it is determined Subject to a release between Executive and Company approved by the Board of Directors or the Compensation Committee of ABM Industries Incorporated, if the Severance Benefits, an equity award, and/or any other benefit provided based on an agreement between Executive and Company would be an excess parachute payment (as hereafter provided“Total Benefits”), but for the application of this Section, then the Total Benefits will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or distribution by the Company or any Employer to or for the benefit of the Executivebenefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreementas so reduced, policyconstitutes an excess parachute payment; provided, planhowever, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of that the foregoing (a “Payment”) reduction will not be made if such reduction would be subject to result in Executive receiving an amount determined on an after-tax basis, taking into account the excise tax imposed by pursuant to Section 4999 of the Code (Code, or any successor provision thereto, any tax imposed by any comparable provision of state law and any applicable federal, state and local income and employment taxes (the “After-Tax Amount”) by reason of being “contingent on a change in ownership or control” less than ninety percent (90%) of the After-Tax Amount of the Total Benefits without regard to this clause. Whether requested by the Executive or Company, within the meaning determination of whether any reduction in Total Benefits to be provided to Executive is required pursuant this Section, and the value to be assigned to the Executive's covenants in Section 5 hereof for purposes of determining the amount, if any, of the “excess parachute payment” under Section 280G of the Code (will be made at the expense of Company by Company's independent accountants or benefits consultant. The determination of whether any successor provision theretoreduction in Severance Benefits, equity award(s) and/or any other agreement or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments otherwise is required pursuant to the Executive (such after-tax value preceding sentence will be made at the expense of Company by independent accountants selected by Company or Company’s benefits consultant. The fact that Executive’s right to reflect the deduction Total Benefits may be reduced by reason of the Excise Tax and all income limitations contained in this paragraph will not of itself limit or otherwise affect any other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive rights of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs agreement. In the event that any payment or arrangements shall be reduced, in the order in which they are due benefit intended to be paid, until the Parachute Value of all Payments paid provided is required to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable be reduced pursuant to this Agreement or otherwiseSection, Executive will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section, to zero would the extent that the payments or benefits does not be sufficient constitute deferred compensation within the meaning of Section 409A. Company will provide Executive with all information reasonably requested by Executive to reduce the Parachute Value of all Payments permit Executive to the Safe Harbor Amount, then non-cash portions make such designation. The term “excess parachute payment” as used in this paragraph means a payment that creates an obligation for Executive to pay excise taxes under Section 280G of the Payments shall be reducedInternal Revenue Code of 1986, in the order in which they are due to be paidas amended, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsor any successor statute.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for the Company (as hereafter provided) the “Accountants”), that any payment payment, benefit or distribution by the Company or any Employer of its subsidiaries or affiliates (a “Payment”) constitute “parachute payments” under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the “Parachute Amount”) exceeds 2.99 times the Executive’s “base amount”, as defined in Section 280G(b)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Executive shall be reduced to the terms of this Agreement or otherwise pursuant extent necessary so that the Parachute Amount is equal to or by reason of any other agreement2.99 times the Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after tax basis, that the Executive would be entitled to retain upon his receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 4.8 results in a reduction of the payments that would otherwise be paid to Executive except for the application of clause (a) of this Section 4.8, Executive may then elect, in his sole discretion, which and how much of any particular entitlement shall be eliminated or reduced and shall advise the Company in writing of his election within ten days of the meaning determination of the reduction in payments. If no such election is made by Executive within such ten-day period, the Company may elect which and how much of any entitlement shall be eliminated or reduced and shall notify Executive promptly of such election. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 4.8 (“Overpayment”) or that additional payments which are not made by the Company pursuant to any similar tax imposed clause (a) of this Section 4.8 should have been made (“Underpayment”). In the event that there is a final determination by state or local lawthe Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall be repaid by Executive to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or penalties with respect a change in the provisions of the Code or regulations pursuant to which an Underpayment arises, any such excise tax (such tax Underpayment shall be promptly paid by the Company to or taxesfor the benefit of Executive, together with any such interest or penalties, are hereafter collectively referred to as at the “Excise Tax”), then, applicable Federal rate provided for in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction Section 7872(f)(2) of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsCode.

Excess Parachute Payments. If 7.1 Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it is shall be determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) Payment would be subject to the excise tax imposed Excise Tax, then Executive shall be entitled to receive an additional payment (the “Gross-Up Payment”) in an amount such that, after payment by Section 4999 Executive of the Code all taxes (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or and any interest or penalties imposed with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), thenincluding, in without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the event Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Code, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 7.1, if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the after-tax value Parachute Value of all Payments to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive does not exceed 110% of the Safe Harbor Amount, (a) then no Gross-Up Payment shall be made to Executive and the cash portions of the Payments amounts payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until reduced so that the Parachute Value of all Payments paid to the ExecutivePayments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash severance payments. For purposes of reducing the Payments to the Safe Harbor Amount, only the cash severance payments payable under this Agreement (and (bno other Payments) if shall be reduced. If the reduction of the amount of cash portions of the Payments, severance payments payable under this Agreement, to zero Agreement would not be sufficient to reduce result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions no amounts payable under the Agreement shall be reduced pursuant to this Section 7.1. The Company’s obligation to make Gross-Up Payments under this Section 7 shall not be conditioned upon Executive’s termination of employment. 7.2 Subject to the provisions of Section 7.3, all determinations required to be made under this Section 7, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Pricewaterhouse Coopers, or such other nationally recognized certified public accounting firm as may be designated by Executive (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized 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. Any determination by the 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 initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments payable that will not have been made by the Company should have been made (the “Underpayment”), consistent with the calculations required to be made hereunder. In the event the Company exhausts its remedies pursuant to Section 7.3 and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. 7.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than 10 business days after Executive is informed in writing of such claim. The Executive shall apprise the Company of the 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 Executive under 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 writing prior to the expiration of such period that the Company desires to contest such claim, Executive shall: 1. give the Company any information reasonably requested by the Company relating to such claim, 2. 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, 3. cooperate with the Company in good faith in order effectively to contest such claim; and 4. 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 additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 7.3, the Company shall control all proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole discretion, either pay the tax claimed to the appropriate taxing authority on behalf of Executive and direct Executive to s▇▇ for a refund or contest the claim 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 Company shall determine; provided, however, that, if the Company pays such claim and directs Executive to s▇▇ for a refund, the Company shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such payment or with respect to any imputed income in connection with such payment; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which the Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case may be, any other agreementsissue raised by the Internal Revenue Service or any other taxing authority. 7.4 If, policiesafter the receipt by Executive of a Gross-Up Payment or payment by the Company of an amount on Executive’s behalf pursuant to Section 7.3, plansExecutive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such claim, programs Executive shall (subject to the Company’s complying with the requirements of Section 7.3, if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or arrangements credited thereon after taxes applicable thereto). If, after payment by the Company of an amount on Executive’s behalf pursuant to Section 7.3, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then the amount of such payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 7.5 Any Gross-Up Payment, as determined pursuant to this Section 7, shall be reducedpaid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination; provided that, the Gross-Up Payment shall in all events be paid no later than the end of Executive’s taxable year next following Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service or any other applicable taxing authority or, in the order case of amounts relating to a claim described in Section 7.3 that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which they are due to be paidthe claim is finally settled or otherwise resolved. Notwithstanding any other provision of this Section 7, until the Parachute Value of all Payments paid Company may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of Executive, in the aggregate, equals the Safe Harbor Amountall or any portion of any Gross-Up Payment, and (c) if the reduction of all cash portions of the Payments, payable pursuant Executive hereby consents to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorssuch withholding.

Excess Parachute Payments. If it is Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement, individually or together, would be an “Excess Parachute Payment” within the meaning of Code Section 280G but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payments or benefits, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payments and benefits to be provided to Executive, determined on an after-tax basis (as hereafter provided) taking into account the excise tax imposed pursuant to Code Section 4999, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). The fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 3.8 will not of itself limit or otherwise affect any other rights of Executive other than pursuant to this Agreement. In the event that any payment or distribution by benefit intended to be provided under this Agreement is required to be reduced pursuant to this Section 3.8, the Company reduction shall be made in the following order: (a) first reducing, if any, those payments or any Employer benefits which have a higher Parachute Value than actual present value, (b) then, to the extent necessary, reducing cash payments or for benefits; and (c) then, to the benefit extent necessary, reducing those payments or benefits having the next highest ratio of Parachute Value to actual present value of such payments or benefits as of the Executive, whether paid or payable or distributed or distributable pursuant to date of the terms change of control (as defined under Code Section 280G). For purposes of this Agreement or otherwise pursuant to or by reason of any other agreementSection 3.8, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any present value shall be determined in accordance with Section 280G(d)(4) of the foregoing (Code. For purposes of this Section 3.8, the “Parachute Value” of a payment or benefit means the present value as of the date of the change of control of the portion of such payment that constitutes a “Payment”parachute payment” under Section 280G(b)(2) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change Code, as valued in ownership or control” of the Company, within the meaning of accordance with Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsinterpretive guidance thereunder.

Excess Parachute Payments. If it is determined (as hereafter provideda) Notwithstanding any other provision of this Agreement, in the event that the amount of payments or other benefits payable to the Executive under this Agreement (including, without limitation, the acceleration of any payment or distribution the accelerated vesting of any payment or other benefit), together with any payments, awards or benefits payable under any other plan, program, arrangement or agreement maintained by the Company or any Employer to or for the benefit one of the Executiveits Affiliates, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing would constitute an “excess parachute payment” (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”Code), then, in the event that payments under Section 5.02 of this Agreement shall be reduced (by the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Paymentsminimum possible amounts) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments until no amount payable to the Executive under this Agreement constitutes an “excess parachute payment” (within the meaning of Section 280G of the Code); provided, however, that no such reduction shall be reducedmade if the net after-tax payment (after taking into account federal, in state, local or other income, employment and excise taxes) to which the order in which they are due to Executive would otherwise be paidentitled without such reduction would be greater than the net after-tax payment (after taking into account federal, until the Parachute Value of all Payments paid state, local or other income, employment and excise taxes) to the Executive, in Executive resulting from the aggregate, equals the Safe Harbor Amount, and receipt of such payments with such reduction. (b) if All determinations required to be made under this Section 12.10, including whether a payment would result in an “excess parachute payment” and the reduction assumptions to be utilized in arriving at such determinations, shall be made by an accounting firm designated by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive as requested by the Company or the Executive. All fees and expenses of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements Accounting Firm shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined borne solely by the Company and shall be paid by the Company’s outside auditors. Absent manifest error, all determinations made by the Accounting Firm under this Section 12.10 shall be final and binding upon the Company and the Executive.

Excess Parachute Payments. (i) If it is determined that any amount, right or benefit paid or payable (as hereafter or otherwise provided or to be provided) that any payment or distribution to the Employee by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of its affiliates under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangementarrangement under which Employee participates or is a party, including without limitation any stock optionother than amounts payable under this Section 1.2(f) (collectively, stock appreciation right or similar rightthe “Payments”), or would constitute an “excess parachute payment” within the lapse or termination meaning of any restriction on or the vesting or exercisability of any Section 280G of the foregoing (a “Payment”) would be Code, subject to the excise tax imposed by Section 4999 of the Code Code, as amended from time to time (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, and the present value of such Payments (calculated in a manner consistent with that set forth in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction applicable regulations promulgated under Section 280G of the Excise Tax and all income Code) is equal to or other taxes on such Payments) would, in the aggregate, be less than $50,000.00 greater than the after-tax value to threshold at which such amount becomes an “excess parachute payment,” then the Executive of the Safe Harbor Amount, (a) the cash portions amount of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid reduced (a “Reduction”) to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction extent necessary so that no portion of the cash portions of the Payments, such Payments payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions Employee is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements Employee is more than $50,000.00 greater than the threshold at which such amount becomes an “excess parachute payment,” then the Employee shall be reducedentitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, in after payment by the order in which they are due Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment (and any interest and penalties imposed with respect thereto), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax (including any interest and penalties imposed with respect thereto) imposed upon the Payments. (iii) All determinations required to be paidmade under Section 1.2(f), until including whether and when a Gross-Up Payment or a Reduction is required, the Parachute Value amount of all Payments paid such Gross-Up Payment or Reduction and the assumptions to the Executivebe utilized in arriving at such determination, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reducedmade by an independent, in the order in which they are due nationally recognized accounting firm mutually acceptable to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Employee (the “Auditor”); provided that in the event a Reduction is determined to be required, the Employee may determine which Payments shall be reduced in order to comply with the provisions of Section 1.2 (f). The Auditor shall promptly provide detailed supporting calculations to both the Company and Employee following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to Section 1.2(f), shall be paid by the Company to the Employee within five (5) days of the receipt of the Auditor’s outside auditorsdetermination. All determinations made by the Auditor shall be binding upon the Company and the Employee; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Employee the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Employee or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment payments or distribution benefits received or to be received by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable Employee pursuant to the terms of this Agreement in connection with or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or controlcontrol are deemed to be an “excess parachute payment” of the Company, within the meaning of Section 280G of the Code (“Excess Parachute Payment”), and if the Company has no publicly traded stock, the Company will use commercially reasonable efforts to obtain “shareholder approval” within the meaning of Section 280G(b)(5) of the Code of such payments or benefits in order to exempt such payments or benefits from being considered an Excess Parachute Payment. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee (including any payment or benefit received in connection with a Change in Control or the termination of the Employee’s employment, whether pursuant to the terms of this Agreement or any successor provision theretoother plan, arrangement or agreement) or to any similar tax imposed by state or local law, or any interest or penalties with respect to (all such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part) to the excise tax imposed pursuant to Section 4999 of the Code (the “Excise Tax”), then, in then the event that the after-tax value of all Total Payments shall be reduced to the Executive (such after-tax value to reflect the deduction extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and all after subtracting the net amount of federal, state and local income or other taxes on such reduced Total Payments) wouldis greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). The Company shall bear the cost of all tax or other consultants retained to perform the calculations required in order to make the determinations required under this Section 4. If a reduction in the aggregateTotal Payments is required under this Section 4, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive specific payments under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined reduced by the Company and the Company’s outside auditorsin its reasonable discretion following consultation with Employee.

Excess Parachute Payments. If it is determined (as hereafter provided) that Notwithstanding anything in this Letter Agreement to the contrary, and subject to the application of this Section 15, if any payment of the payments or distribution benefits provided or to be provided by the Company EGH, WME, or any member of the Employer Group to Employee or for the Employee’s benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Letter Agreement or otherwise pursuant (“Covered Payments”) are determined to or by reason constitute “excess parachute payments” within the meaning of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any Section 280G of the foregoing (a “Payment”) would Code and would, but for this Section 15 be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, law or any interest or penalties with respect to such excise tax taxes (such tax or taxescollectively, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), thenthen the Covered Payments shall be reduced (but not below zero) to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax; provided, however, that EGH or, as applicable, WME, agrees to, and agrees to cause any other relevant member of the Employer Group to, submit to a stockholder vote your right to receive the Covered Payments and use commercially reasonable best efforts to obtain shareholder approval of any payments or benefits in excess of the safe harbor level in accordance with Q&A #7 of Section 280G of the Code (the “Shareholder Approval Exception”), to the extent applicable and available, such that there will be no such loss of deductibility under Code Section 280G or imposition of tax under Section 4999 of the Code. In the event that the Shareholder Approval Exception is not applicable and/or available, the cutback to the Covered Payments contemplated pursuant to this Section 15 shall only be applied if such reduction will result in, after taking into account all applicable taxes, including any federal, state and local taxes and the Excise Tax, a greater net after-tax value of all Payments benefit to Employee than the Executive (such net after-tax value benefit to reflect Employee of payment of all Covered Payments computed without regard to any such reduction. All determinations required to be made under this Section 15, including whether a payment would result in an “excess parachute payment” and the deduction assumptions utilized in arriving at such determination, shall be made by a “Big Four” accounting firm selected by EGH, at EGH’s expense. This Section 15 amends Section 12 of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Existing Employment Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditors.

Excess Parachute Payments. If 7.1 Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it is shall be determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) Payment would be subject to the excise tax imposed Excise Tax, then Executive shall be entitled to receive an additional payment (the “Gross-Up Payment”) in an amount such that, after payment by Section 4999 Executive of the Code all taxes (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or and any interest or penalties imposed with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), thenincluding, in without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the event Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Code, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 7.1, if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the after-tax value Parachute Value of all Payments to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive does not exceed 110% of the Safe Harbor Amount, (a) then no Gross-Up Payment shall be made to Executive and the cash portions of the Payments amounts payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until reduced so that the Parachute Value of all Payments paid to the ExecutivePayments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash severance payments. For purposes of reducing the Payments to the Safe Harbor Amount, only the cash severance payments payable under this Agreement (and (bno other Payments) if shall be reduced. If the reduction of the amount of cash portions of the Payments, severance payments payable under this Agreement, to zero Agreement would not be sufficient to reduce result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions no amounts payable under the Agreement shall be reduced pursuant to this Section 7.1. The Company’s obligation to make Gross-Up Payments under this Section 7 shall not be conditioned upon Executive’s termination of employment. 7.2 Subject to the provisions of Section 7.3, all determinations required to be made under this Section 7, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Pricewaterhouse Coopers, or such other nationally recognized certified public accounting firm as may be designated by Executive (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized 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. Any determination by the 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 initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments payable that will not have been made by the Company should have been made (the “Underpayment”), consistent with the calculations required to be made hereunder. In the event the Company exhausts its remedies pursuant to Section 7.3 and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. 7.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than 10 business days after Executive is informed in writing of such claim. The Executive shall apprise the Company of the 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 Executive under 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 writing prior to the expiration of such period that the Company desires to contest such claim, Executive shall: 1. give the Company any information reasonably requested by the Company relating to such claim, 2. 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, 3. cooperate with the Company in good faith in order effectively to contest such claim; and 4. 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 additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 7.3, the Company shall control all proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole discretion, either pay the tax claimed to the appropriate taxing authority on behalf of Executive and direct Executive to ▇▇▇ for a refund or contest the claim 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 Company shall determine; provided, however, that, if the Company pays such claim and directs Executive to ▇▇▇ for a refund, the Company shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such payment or with respect to any imputed income in connection with such payment; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which the Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case may be, any other agreementsissue raised by the Internal Revenue Service or any other taxing authority. 7.4 If, policiesafter the receipt by Executive of a Gross-Up Payment or payment by the Company of an amount on Executive’s behalf pursuant to Section 7.3, plansExecutive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such claim, programs Executive shall (subject to the Company’s complying with the requirements of Section 7.3, if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or arrangements credited thereon after taxes applicable thereto). If, after payment by the Company of an amount on Executive’s behalf pursuant to Section 7.3, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then the amount of such payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 7.5 Any Gross-Up Payment, as determined pursuant to this Section 7, shall be reducedpaid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination; provided that, the Gross-Up Payment shall in all events be paid no later than the end of Executive’s taxable year next following Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service or any other applicable taxing authority or, in the order case of amounts relating to a claim described in Section 7.3 that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which they are due to be paidthe claim is finally settled or otherwise resolved. Notwithstanding any other provision of this Section 7, until the Parachute Value of all Payments paid Company may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of Executive, in the aggregate, equals the Safe Harbor Amountall or any portion of any Gross-Up Payment, and (c) if the reduction of all cash portions of the Payments, payable pursuant Executive hereby consents to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorssuch withholding.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, Company: HW Employee: DSS policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” effective control of the Company or of a substantial portion of the assets of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) ), or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, plans, programs programs, or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount. All calculations under this section Section shall be determined by a national accounting firm selected by the Company and (which may include the Company’s outside auditors). The Company shall pay all costs to obtain and provide such calculations to Employee and the Company. For purposes of this Agreement, the “Parachute Value” of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. (a) If it is determined (as hereafter provided) that any payment payments or distribution benefits received or to be received by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable Employee pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangementAgreement, including without limitation any stock option, stock appreciation right those made in connection with or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control, (collectively, the “Company Payments”) would be deemed to be an “excess parachute payment” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxExcess Parachute Payment”), and if the Company has no publicly-traded stock, the Company, with the consent of Employee, will use commercially reasonable efforts to obtain “shareholder approval” within the meaning of Section 280G(b)(5) of the Code of such payments or benefits in order to exempt such payments or benefits from being considered an Excess Parachute Payment. Employee’s consent to shareholder approval shall include a waiver by Employee of any such payments or benefits that are not approved by the shareholders. If Employee does not consent to subjecting such payments or benefits to shareholder approval, then, in the event that the after-tax value of all Payments to the Executive (at Company’s election, such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive payments under this Agreement shall either be reducedpaid in full or reduced to the extent necessary to avoid being considered an Excess Parachute Payment, based upon Company’s determination, in the order in its sole discretion, as to which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, alternative results in the aggregate, equals the Safe Harbor Amount, and better tax consequences for Employee. (b) if If the Company has publicly traded stock, then Employee will be entitled to receive either (i) the full amount of the Company Payments, or (ii) a portion of the Company Payments having a value equal to $10 less than three (3) times Employee’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by Employee on an after-tax basis, of the greatest portion of the Company Payments. Any determination required under this Section 8 shall be made in writing by the independent public accountant of the Company (the “Accountants”), whose determination shall be conclusive and binding for all purposes upon the Company and Employee. For purposes of making any calculation required by this Section 8, 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. If there is a reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Company Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwiseSection 8, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments such reduction shall be reduced, occur in the order in which they are due following order: (A) any cash severance payable by reference to be paidEmployee’s Base Salary or Annual Bonus, until the Parachute Value (B) any other cash amount payable to Employee, (C) any employee benefit valued as a “parachute payment,” and (D) acceleration of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsvesting of any outstanding equity award.

Excess Parachute Payments. a. If it is determined (as hereafter provided) that any payment payments or distribution benefits received or to be received by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable Employee pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangementAgreement, including without limitation any stock option, stock appreciation right those made in connection with or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control, (collectively, the “Company Payments”) would be deemed to be an “excess parachute payment” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxExcess Parachute Payment”), and if the Company has no publicly-traded stock, the Company, with the consent of Employee, will use commercially reasonable efforts to obtain “shareholder approval” within the meaning of Section 280G(b)(5) of the Code of such payments or benefits in order to exempt such payments or benefits from being considered an Excess Parachute Payment. Employee’s consent to shareholder approval shall include a waiver by Employee of any such payments or benefits that are not approved by the shareholders. If Employee does not consent to subjecting such payments or benefits to shareholder approval, then, in the event that the after-tax value of all Payments to the Executive (at Company’s election, such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive payments under this Agreement shall either be reducedpaid in full or reduced to the extent necessary to avoid being considered an Excess Parachute Payment, based upon Company’s determination, in the order in its sole discretion, as to which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, alternative results in the aggregatebetter tax consequences for Employee. b. If the Company has publicly traded stock, equals then Employee will be entitled to receive either (i) the Safe Harbor Amountfull amount of the Company Payments, or (ii) a portion of the Company Payments having a value equal to $10 less than three (3) times Employee’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by Employee on an after-tax basis, of the greatest portion of the Company Payments. Any determination required under this Section 9 shall be made in writing by the independent public accountant of the Company (b) if the “Accountants”), whose determination shall be conclusive and binding for all purposes upon the Company and Employee. For purposes of making any calculation required by this Section 9, 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. If there is a reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Company Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwiseSection 9, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments such reduction shall be reduced, occur in the order in which they are due following order: (A) any cash severance payable by reference to be paidEmployee’s Base Salary or Annual Bonus, until the Parachute Value (B) any other cash amount payable to Employee, (C) any employee benefit valued as a “parachute payment,” and (D) acceleration of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsvesting of any outstanding equity award.

Excess Parachute Payments. If it is determined (as hereafter provideda) In the event that any payment Executive becomes entitled to payments or distribution by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of benefits under this Agreement and/or any other payments or otherwise pursuant to or benefits by reason of a “change of control” as defined in Section 280G of the Code and regulations thereunder (collectively, the “Payments”), and any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar rightsuch Payment would constitute an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would otherwise be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local lawCode, or any interest similar federal or penalties with respect to such excise tax state law (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the an “Excise Tax”), thenas determined by an independent certified public accounting firm selected by the Company (the “Accounting Firm”), the amount of Executive’s Payments shall be limited to the largest amount payable, if any, that would not result in the event that imposition of any Excise Tax to Executive, but only if, notwithstanding such limitation, the after-tax value total Payments, net of all taxes imposed on Executive with respect thereto, would be greater if no Excise Tax were imposed. (i) If a reduction in the Payments is necessary, reduction shall occur in the following order: first, a reduction of cash payments not attributable to equity awards which vest on an accelerated basis; second, the Executive cancellation of accelerated vesting of equity awards; third, the reduction of employee benefits; and fourth, a reduction in any other “parachute payments” (such after-tax value to reflect the deduction as defined in Section 280G of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value Code). If acceleration of vesting of equity award compensation is to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, such acceleration of vesting shall be cancelled in the reverse order in which they are due of the date of grant of Executive’s equity awards. (ii) All determinations required to be paid, until made under this Section 30 will be made by the Parachute Value of all Payments paid to Accounting Firm. Any determination by the Accounting Firm will be binding upon the Company and Executive, in the aggregate, equals the Safe Harbor Amount, and . (b) if Notwithstanding the reduction foregoing and to the extent no stock of the cash portions Company is then readily tradable on an established securities market or otherwise, the Company shall use its reasonable good faith efforts to submit for stockholder approval any Payments that could be subject to the Excise Tax, under procedures intended to comply with the requirements of Section 280G(b)(5)(B) of the PaymentsCode and Treasury Regulation Section 1.280G-1, payable under this Agreement, Q&A 7 (or such replacement or successor provision thereto). The Company’s obligation to zero would not be sufficient to reduce the Parachute Value of all submit such Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements stockholders shall be reducedconditioned on Executive executing a waiver of such Payments so that the stockholders’ vote will determine whether such Payments are made. The materials submitted to stockholders and Executive’s waiver shall be in such form as the Company may prescribe. For the avoidance of doubt, in any reasonable good faith effort by the order in which they are due Company to be paid, until the Parachute Value of all submit any Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable for stockholder approval pursuant to this Agreement or otherwise, to zero would Section 30 shall not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by require the Company and the Company’s outside auditorsto conduct any electioneering or to encourage or direct stockholders’ votes in any way.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” effective control of the Company or of a substantial portion of the assets of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) ), or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, plans, programs programs, or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount. All calculations under this section Section shall be determined by a national accounting firm selected by the Company and (which may include the Company’s outside auditors). The Company shall pay all costs to obtain and provide such calculations to Employee and the Company. For purposes of this Agreement, the “Parachute Initials: LSD Company: Employee: SV Value” of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for the Company (as hereafter provided) the “Accountants”), that any payment payment, benefit or distribution by the Company or any Employer of its subsidiaries or affiliates (a “Payment”) constitute “parachute payments” under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the “Parachute Amount”) exceeds 2.99 times the Executive’s “base amount”, as defined in Section 2800(b)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Executive shall be reduced to the terms of this Agreement or otherwise pursuant extent necessary so that the Parachute Amount is equal to or by reason of any other agreement2.99 times the Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after tax basis, that the Executive would be entitled to retain upon his receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 4.8 results in a reduction of the Payments, within such Payments shall be reduced in the meaning order that would provide the Executive with the largest amount of after-tax proceeds (with such order determined by the Accountants in a manner that is both consistent with, and avoids imposition of excise taxes under, Code Sections 280G and 409A). The Executive shall at any time have the unilateral right to forfeit any equity award in whole or in part, except to the extent such forfeiture would result in an impermissible substitution under Code Section 409A. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 4.8 (“Overpayment”) or that additional payments which are not made by the Company pursuant to any similar tax imposed clause (a) of this Section 4.8 should have been made (“Underpayment”). In the event that there is a final determination by state or local lawthe Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall be repaid by Executive to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or penalties with respect a change in the provisions of the Code or regulations pursuant to which an Underpayment arises, any such excise tax (such tax Underpayment shall be promptly paid by the Company to or taxesfor the benefit of Executive, together with any such interest or penalties, are hereafter collectively referred to as at the “Excise Tax”), then, applicable Federal rate provided for in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction Section 7872(f)(2) of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsCode.

Excess Parachute Payments. (i) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveExecutive pursuant to Section 7, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangementarrangement in connection with a Change in Control, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Severance Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “Excise Tax”), thenthen the 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 interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Severance Payments. (ii) Subject to the provisions of Section 11(a)(i) hereof, all determinations required to be made under this Section 11, including whether an Excise Tax is payable by the Executive and the amount of such Excise 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 Termination 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 Excise 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 Excise 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/she has substantial authority not to report any Excise Tax on Executive’s federal, state, local income or other tax return. Any 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 Services 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 Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law 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 10 hereof and the Executive thereafter is required to make a payment of any Excise 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. (iii) The federal, state and local income or other 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 consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by the Executive. The Executive shall make proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of Executive’s federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, 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, or corresponding state or local tax return, if relevant, the Accounting Firm determines 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. (iv) 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 11(a) hereof. (v) The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Sections 11(a)(ii) and (iv) 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 Executive’s payment thereof. Notwithstanding the immediately preceding, reimbursement of fees and expenses under this Section 11(a)(v) must be made before the end of the Executive’s taxable year next following the Executive’s taxable year in which such fee or expense was incurred. The amount of fees or expenses eligible for reimbursement under this Section 11(a)(v) during a year may not affect the fees or expenses eligible for reimbursement under this Section 11(a)(v) in any other taxable year. (b) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement constitutes an “excess parachute payment,” within the meaning of Section 280G(b)(1) of the Code, the Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but no later than 10 business days after the 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. 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 writing 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; (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 value basis, for and against any Excise Tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (c) The Company shall control all Payments 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 pay the tax claimed and direct the Executive to ▇▇▇ for a refund or direct the Executive to contest the claim in any permissible manner, and the 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 Company shall determine; provided, however, that if the Company pays such claim and directs the Executive to ▇▇▇ for a refund, the Company shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or other tax (including interest and penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment; and provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a corporate deduction would be disallowed pursuant to Section 280G of the Code and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the 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 (including any other tax position of the Executive unrelated to matters covered hereby). (d) If, after payment by the Company in connection with the contest of the Excise Tax claim, the Executive becomes entitled to receive any refund with respect to such claim, the 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 paid by the Company or it is otherwise determined for any reason that additional amounts could be paid to the Executive without incurring any Excise Tax, any such amount will be promptly paid by the Company to the Executive (or shall be applied to reduce any amount that Executive would otherwise be required to pay the Company). If, after payment by the Company in connection with an Excise Tax claim, a determination is made that the Executive shall not be entitled to any refund with respect to such after-tax value claim and the Company does not notify the Executive in writing of its intent to reflect contest the deduction denial of such refund prior to the expiration of 30 days after such determination, the Company shall have no claim against the Executive for the amount paid and such amount shall be deemed to be in consideration for services rendered after the date of the Excise Tax and all income or other taxes on such PaymentsTermination. (e) wouldNotwithstanding the foregoing, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, payment described in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (cSection 11(c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be is determined by the Company to be impermissible under applicable law, then no such payment shall be made, nor shall the Company direct the Executive to pay the tax claimed and ▇▇▇ for a refund. (f) Subject to Section 11(e), the CompanyCompany shall make any payment required under this Section 11 (other than payments reimbursing the Executive for professional fees and expenses already addressed in this Section 11) to the Executive as soon as practicable after any Excise Tax is paid by the Executive; provided, however, that such payments must be made before the end of the Executive’s outside auditorstaxable year next following the Executive’s taxable year in which the Executive remits such taxes. In addition, a right to a payment under this Section 11 that is incurred due to a tax audit or litigation addressing the existence or amount of a tax liability, such payment must be made by the end of the year following the year in which the taxes that are the subject of the audit or litigation are remitted, or where as a result of such audit or litigation no taxes are remitted, the end of the year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution to the litigation.

Excess Parachute Payments. (a) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable (including payments and benefits pursuant to the terms this Agreement) that Executive has received in connection with an acquisition of Executive’s previous employer, or would receive pursuant to this Agreement or otherwise pursuant to or by reason of any other agreement(collectively, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “PaymentAcquisition Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, then such Acquisition Payments shall be equal to the Reduced Amount. The “Reduced Amount” shall be the largest portion of the Acquisition Payments that would result in no portion of the event Acquisition Payments being subject to the Excise Tax. If a reduction in payments or benefits constituting the Acquisition Payments is necessary so that the after-tax value of all Acquisition Payments to equal the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Reduced Amount, (aA) the cash portions Executive shall have no right to any portion of the Acquisition Payments payable to the Executive under this Agreement shall be reduced, except those included in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Reduced Amount, and (bB) if reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the cash portions event that acceleration of the Payments, payable under this Agreement, compensation from Executive’s equity awards is to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, such acceleration of vesting shall be canceled in the reverse order in which they are due of the date of grant. (b) The independent professional firm engaged by the Company for general tax audit purposes as of the day prior to the effective date of the Change of Control shall make all determinations required to be paidmade under this Section 4.7. If the firm so engaged by the Company is serving as advisor for the individual, until entity or group effecting the Parachute Value Change of Control, the Company shall appoint a nationally recognized independent professional firm to make the determinations required hereunder. The Company shall bear all Payments paid expenses with respect to the Executive, in the aggregate, equals the Safe Harbor Amount, and determinations by such independent registered public accounting firm required to be made hereunder. (c) if The firm engaged to make the reduction of all cash portions of the Paymentsdeterminations hereunder shall provide its calculations, payable pursuant to this Agreement or otherwisetogether with detailed supporting documentation, to zero would not be sufficient the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to reduce the Parachute Value of all any Acquisition Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. If the firm determines that no Excise Tax is payable with respect to any Acquisition Payments, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Acquisition Payments. Any good faith determinations of the Company’s outside auditorsfirm made hereunder shall be final, binding and conclusive upon the Company and Executive.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” effective control of the Company or of a substantial portion of the assets of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) ), or to any similar tax imposed by state or local law, or any interest or penalties with respect Initials: Company: MS Employee: VG to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, plans, programs programs, or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount. All calculations under this section Section shall be determined by a national accounting firm selected by the Company and (which may include the Company’s outside auditors). The Company shall pay all costs to obtain and provide such calculations to Employee and the Company. For purposes of this Agreement, the ‘‘Parachute Value” of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. If it is determined (as hereafter provided) that Notwithstanding anything in this Letter Agreement to the contrary, and subject to the application of this Section 14, if any payment of the payments or distribution benefits provided or to be provided by the Company EGH, WME or any member of the Employer Group to Employee or for the Employee’s benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Letter Agreement or otherwise pursuant (“Covered Payments”) are determined to or by reason constitute “excess parachute payments” within the meaning of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any Section 280G of the foregoing (a “Payment”) would Code and would, but for this Section 14 be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, law or any interest or penalties with respect to such excise tax taxes (such tax or taxescollectively, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), thenthen the Covered Payments shall be reduced (but not below zero) to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax; provided, however, that EGH or, as applicable, WME, agrees to, and agrees to cause any other relevant member of the Employer Group to, submit to a stockholder vote your right to receive the Covered Payments and use commercially reasonable best efforts to obtain shareholder approval of any payments or benefits in excess of the safe harbor level in accordance with Q&A #7 of Section 280G of the Code (the “Shareholder Approval Exception”), to the extent applicable and available, such that there will be no such loss of deductibility under Code Section 280G or imposition of tax under Section 4999 of the Code. In the event that the Shareholder Approval Exception is not applicable and/or available, the cutback to the Covered Payments contemplated pursuant to this Section 14 shall only be applied if such reduction will result in, after taking into account all applicable taxes, including any federal, state and local taxes and the Excise Tax, a greater net after-tax value of all Payments benefit to Employee than the Executive (such net after-tax value benefit to reflect the deduction Employee of the Excise Tax and payment of all income or other taxes on Covered Payments computed without regard to any such Payments) would, in the aggregate, reduction. All determinations required to be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive made under this Agreement Section 14, including whether a payment would result in an “excess parachute payment” and the assumptions utilized in arriving at such determination, shall be reducedmade by a “Big Four” accounting firm selected by EGH, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Companyat EGH’s outside auditorsexpense.

Excess Parachute Payments. If it is determined (as hereafter provided) that Notwithstanding anything to the contrary in this Agreement, if any payment or distribution by the Company or any Employer of compensation to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to not made under the terms of this Agreement Agreement, either alone or otherwise pursuant together with other payments and benefits which the Executive has received or has a right to or by reason of any other agreementreceive, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section section 4999 of the Code (Code, such payments and/or benefits shall be reduced by the amount, if any, which is the minimum necessary to result in no portion of such payments or any successor provision thereto) by reason of benefits being “contingent on a change in ownership or control” subject to the excise tax imposed under section 4999 of the CompanyCode; provided, within however that no such reduction shall apply if the meaning of Section 280G after-tax benefit to the Executive of the Code full amount of such payments and/or benefits is at least five percent (or any successor provision thereto5%) or greater than the after-tax benefit to any similar tax imposed by state or local lawthe Executive of such payments and/or benefits after such reduction. For purposes of this section 33, or any interest or penalties with respect to such excise tax (such tax or “after-tax” shall mean after reduction for all applicable income and employment taxes, together with and for excise taxes under section 4999 of the Code. The amount of any such interest or penalties, are hereafter collectively referred required reduction shall be determined and applied in a manner calculated to as the “Excise Tax”), then, in the event that maximize the after-tax value of all Payments the remaining payments and benefits. All calculations required to be made in order to determine whether payments would be subject to the excise tax imposed under section 4999 of the Code, including the assumptions to be utilized in arriving at such determination and the amount and application of any required reduction, shall be made by independent counsel retained by the Company for this purpose prior to the event or the closing of the transaction which results in the application of section 4999 of the Code or such other independent counsel or independent firm of certified public accountants as the Company may designate with the consent of the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement which consent shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient unreasonably withheld or delayed) (the “Tax Advisor”), which shall provide detailed supporting calculations both to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Executive within fifteen (15) business days of the receipt of demand from the Officer, or such earlier time as is requested by the Company’s outside auditors. All fees and expenses of the Tax Advisor shall be borne solely by the Company. Any determination by the Tax Advisor shall be binding upon the Company and the Executive and all other interested parties in the absence of manifest error.

Excess Parachute Payments. If it is determined Notwithstanding any other provision of this Agreement, in the event that the amount of payments or other benefits payable to the Executive under this Agreement (as hereafter provided) that including, without limitation, the acceleration of any payment or distribution the accelerated vesting of any payment or other benefit), together with any payments, awards or benefits payable under any other plan, program, arrangement or agreement maintained by the Company or any Employer to or for Company, would constitute an “excess parachute payment” (within the benefit meaning of Section 280G of the ExecutiveCode), whether paid or the payments otherwise constituting “excess parachute payments” shall be reduced (by the minimum possible amounts) until no amount payable or distributed or distributable pursuant to the terms Executive constitutes an “excess parachute payment” (within the meaning of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any Section 280G of the foregoing Code); provided, however, that no such reduction shall be made if the net after-tax payment (a “Payment”after taking into account federal, state, local or other income, employment and excise taxes) to which the Executive would otherwise be entitled without such reduction would be greater than the net after-tax payment (after taking into account federal, state, local or other income, employment and excise taxes) to the Executive resulting from the receipt of such payments with such reduction. In applying any such reduction, to the extent any such payments may be subject to Code Section 409A, the excise tax imposed by reduction shall first be applied to any payments under Section 4999 2.A(iv) hereof on a pro rata basis, and next to the remaining payments on a pro rata basis in proportion to the amount of the Code (or any successor provision thereto) by reason of being such payments that are considered “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code Code. All determinations required to be made under this Section 9, including whether a payment would result in an “excess parachute payment” and the assumptions to be utilized in arriving at such determinations, shall be made by a nationally recognized accounting or consulting firm designated by the Company (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxAccounting Firm”), then, in the event that the after-tax value of all Payments ) which shall provide detailed supporting calculations both to the Company and the Executive (such after-tax value to reflect as requested by the deduction Company or the Executive. All fees and expenses of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement Accounting Firm shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined borne solely by the Company and shall be paid by the Company’s outside auditors. Absent manifest error, all determinations made by the Accounting Firm under this Section 9 shall be final and binding upon the Company and the Executive.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” effective control of the Company or of a substantial portion of the assets of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) ), or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, plans, programs programs, or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount. All calculations under this section Section shall be determined by a national accounting firm selected by the Company and (which may include the Company’s outside auditors). The Company shall pay all costs to obtain and provide such calculations to Employee and the Company. For purposes of this Agreement, the “Parachute Value” of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. If it is determined (as hereafter provideda) In the event that the Executive becomes entitled to payments or benefits under this Agreement, the Option and/or any payment other payments or distribution by the Company or any Employer 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 pursuant to or benefits by reason of a “change of control” as defined in Section 280G of the Code and regulations thereunder (collectively, the “Payments”), and any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar rightsuch Payment would constitute an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would otherwise be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local lawCode, or any interest similar federal or penalties with respect to such excise tax state law (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the an “Excise Tax”), thenas determined by an independent certified public accounting firm selected by the Company (the “Accounting Firm”), the amount of the Executive’s Payments shall be limited to the largest amount payable, if any, that would not result in the event that the after-tax value imposition of all Payments to the Executive (such after-tax value to reflect the deduction of the any Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in but only if, notwithstanding such limitation, the aggregatetotal Payments, equals net of all taxes imposed on the Safe Harbor AmountExecutive with respect thereto, and would be greater if no Excise Tax were imposed. (b) if If a reduction in the Payments is necessary, reduction shall occur in the following order: first, a reduction of cash payments not attributable to equity awards which vest on an accelerated basis; second, the cancellation of accelerated vesting of stock awards; third, the reduction of the cash portions employee benefits; and fourth, a reduction in any other “parachute payments” (as defined in Section 280G of the Payments, payable under this Agreement, Code). If acceleration of vesting of stock award compensation is to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, such acceleration of vesting shall be cancelled in the reverse order in which they are due to be paid, until of the Parachute Value date of all Payments paid to grant of the Executive, in the aggregate, equals the Safe Harbor Amount’s stock awards, and the acceleration of the vesting of full shares shall be cancelled before the acceleration of the vesting of options. (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due All determinations required to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations made under this section shall Section 9 will be determined made by the Accounting Firm. Any determination by the Accounting Firm will be binding upon the Company and the Executive. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 9 shall be borne by the Company’s outside auditors.

Excess Parachute Payments. (i) If it is determined that any amount, right or benefit paid or payable (as hereafter or otherwise provided or to be provided) that any payment or distribution to the Employee by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of its affiliates under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangementarrangement under which Employee participates or is a party, including without limitation any stock optionother than amounts payable under this Section 1.2(f) (collectively, stock appreciation right or similar rightthe “Payments”), or would constitute an “excess parachute payment” within the lapse or termination meaning of any restriction on or the vesting or exercisability of any Section 280G of the foregoing (a “Payment”) would be Code, subject to the excise tax imposed by Section 4999 of the Code Code, as amended from time to time (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, and the present value of such Payments (calculated in a manner consistent with that set forth in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction applicable regulations promulgated under Section 280G of the Excise Tax and all income Code) is equal to or other taxes on such Payments) would, in the aggregate, be less than $25,000.00 greater than the after-tax value to threshold at which such amount becomes an “excess parachute payment,” then the Executive of the Safe Harbor Amount, (a) the cash portions amount of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid reduced (a “Reduction”) to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction extent necessary so that no portion of the cash portions of the Payments, such Payments payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions Employee is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements Employee is more than $25,000.00 greater than the threshold at which such amount becomes an “excess parachute payment,” then the Employee shall be reducedentitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, in after payment by the order in which they are due Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment (and any interest and penalties imposed with respect thereto), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax (including any interest and penalties imposed with respect thereto) imposed upon the Payments. (iii) All determinations required to be paidmade under Section 1.2(f), until including whether and when a Gross-Up Payment or a Reduction is required, the Parachute Value amount of all Payments paid such Gross-Up Payment or Reduction and the assumptions to the Executivebe utilized in arriving at such determination, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reducedmade by an independent, in the order in which they are due nationally recognized accounting firm mutually acceptable to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Employee (the “Auditor”); provided that in the event a Reduction is determined to be required, the Employee may determine which Payments shall be reduced in order to comply with the provisions of Section 1.2 (f). The Auditor shall promptly provide detailed supporting calculations to both the Company and Employee following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to Section 1.2(f), shall be paid by the Company to the Employee within five (5) days of the receipt of the Auditor’s outside auditorsdetermination. All determinations made by the Auditor shall be binding upon the Company and the Employee; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Employee the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Employee or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” effective control of the Company or of a substantial portion of the assets of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) ), or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, Company: KB Employee: SM plans, programs programs, or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount. All calculations under this section Section shall be determined by a national accounting firm selected by the Company and (which may include the Company’s outside auditors). The Company shall pay all costs to obtain and provide such calculations to Employee and the Company. For purposes of this Agreement, the “Parachute Value” of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for BHI or the Company (as hereafter provided) the “Accountants”), that any payment payment, benefit or distribution by the Company Company, BHI or any Employer of their respective subsidiaries or affiliates (a “Payment”) constitute “parachute payments” under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the “Parachute Amount”) exceeds 2.99 times the Executive’s “base amount”, as defined in Section 280G(h)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Executive shall be reduced to the terms of this Agreement or otherwise pursuant extent necessary so that the Parachute Amount is equal to or by reason of any other agreement2.99 times the Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after tax basis, that the Executive would be entitled to retain upon his receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 12 results in a reduction of the payments that would otherwise be paid to Executive except for the application of clause (a) of this Section 12, each particular entitlement of Executive shall be eliminated or reduced as follows: (i) first all cash payments, pro rata; and then (ii) all remaining benefits, pro rata. Within any of these categories, a reduction shall occur first with respect to amounts that are not deemed to constitute a “deferral of compensation” within the meaning of and subject to Code Section 409A (“Nonqualified Deferred Compensation”) and then with respect to amounts that are treated as Nonqualified Deferred Compensation, with such reduction being applied in each case to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 12 (“Overpayment”) or that additional payments which are not made by the Company pursuant to any similar tax imposed clause (a) of this Section 12 should have been made (“Underpayment”). In the event that there is a final determination by state or local lawthe Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made and that repayment will eliminate any interest or penalties with respect to such excise tax (otherwise due under Section 4999 of the Code, any such tax Overpayment shall be repaid by Executive to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or taxesa change in the provisions of the Code or regulations pursuant to which an Underpayment arises, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive, together with any such interest or penalties, are hereafter collectively referred to as at the “Excise Tax”), then, applicable Federal rate provided for in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction Section 7872(f)(2) of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsCode.

Excess Parachute Payments. 9.1 If it is determined (as hereafter provided) that any payment by Employer or distribution by the Company receipt of any benefit from Employer (whether or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable not pursuant to the terms of this Agreement or otherwise pursuant Agreement) shall be deemed to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change constitute an "excess parachute payment" as such term is described in ownership or control” of the Company, within the meaning of Section 280G of the Code (so as to result in the loss of a deduction to Employer under Code Section 280G or in the imposition of an excise tax on the Executive under Code Section 4999, or any successor provision theretosections thereto (an "Excess Parachute Payment"), then the Executive shall be paid either (i) the amounts and benefits due, or (ii) the amounts and benefits due shall be reduced to an amount equal to one-dollar ($1) less than the maximum amount allowed under the Code that would avoid the existence of an "Excess Parachute Payment," whichever amount results in the greater after-tax payment to the Executive. Employer, in its sole discretion, shall determine whether or not an "excess parachute payment" would otherwise occur and shall determine the amount and method of the foregoing reduction. 9.2 Notwithstanding the provisions of Section 9.1 above, if any similar payment by Employer or the receipt of any benefit from Employer (whether or not pursuant to this Agreement) in calendar year 2008 or 2009 shall be deemed to constitute an "excess parachute payment" as such term is described in Section 280G of the Code so as to result in the loss of a deduction to Employer under Code Section 280G or in the imposition of an excise tax imposed by state or local lawon the Executive under Code Section 4999, or any interest or penalties with respect to such excise tax (such tax or taxessuccessor sections thereto, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, then in the event that the after-tax value of all Payments addition to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income amounts payable or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable benefits provided under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments Executive shall receive an additional amount equal to the Safe Harbor Amount, then amount of any cash portions excise tax imposed on Executive under Code Section 4999. Such additional amount shall be paid to Executive on or before December 31 of the Payments payable to calendar year following the calendar year in which the Executive under any other agreements, policies, plans, programs or arrangements shall be reducedremits such excise tax. Employer, in its sole discretion, shall determine whether or not an "excess parachute payment" would otherwise occur and shall determine the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, amount and (c) if the reduction of all cash portions method of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsforegoing reduction.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would payments required to be subject made to the excise tax imposed by Section 4999 Executive pursuant to subparagraph (d), (e), or (f) of the Code (or any successor provision thereto) by reason of being this Paragraph 10 constitute “contingent on a change in ownership or controlexcess parachute payments” of the Company, within the meaning of Section 280G of the Internal Revenue Code (or of 1986, as amended, and any successor provision thereto) or to regulations thereunder, and the Executive becomes liable for any similar excise tax imposed by state or local law, or on such “excess parachute payments” and any interest or penalties with respect to thereon (such excise tax (such tax or taxestax, together with any such interest or interest, and penalties, collectively, the “Tax Penalties”), then the Companies (and the Permitted Assignee, if applicable) promptly shall make a cash payment (the “Additional Payment”) to the Executive in an amount equal to the Tax Penalties. The Companies also promptly shall make an additional cash payment to the Executive in an amount rounded to the nearest $100.00 which is equal to any additional income, excise, and other taxes (using the individual tax rates applicable to the Executive for the year for which such Tax Penalties are hereafter collectively owed) for which the Executive will be liable as a result of (i) the Executive’s receipt of the Additional Payment; or (ii) the Executive’s receipt of any benefits described in subparagraph (m) of this Paragraph 10 that are not otherwise deductible by the Executive from his taxable income for the year in which he receives such benefits (the additional cash payment provided for in this sentence being referred to as the a “Excise TaxGross-Up Payment”). In addition, then, in the event that the after-tax value of all Payments to the Executive shall be entitled to promptly receive from the Companies (such afterand the Permitted Assignee, if applicable) a further Gross-tax value to reflect Up Payment in respect of each prior Gross-Up Payment until the deduction amount of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be last Gross-Up Payment is less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditors$100.00.

Excess Parachute Payments. (a) If there is a “Change in Control” of the Company within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), a portion of the benefits to which V▇▇▇▇▇▇▇▇▇ is entitled under this Agreement could be characterized as “excess parachute payments” within the meaning of Section 280G of the Code. The parties hereto acknowledge that the protections set forth in this Section 3.9 are important, and it is agreed that V▇▇▇▇▇▇▇▇▇ should not have to bear the full burden of the excise tax that might be levied under Section 4999 of the Code or any similar provision of federal, state of local law, in the event that any portion of the benefits payable to V▇▇▇▇▇▇▇▇▇ pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 3.9. (b) Anything in this Agreement to the contrary notwithstanding, if it shall be determined (as hereafter provided) that any payment or distribution (including income recognized by V▇▇▇▇▇▇▇▇▇ upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any Employer other Person to or for the benefit of the Executive, V▇▇▇▇▇▇▇▇▇ (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant otherwise, but determined without regard to or by reason of any other agreementadditional payments required under this Section 3.9, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor similar provision thereto) by reason of being “contingent on a change in ownership or control” of the Companyany federal, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, law or any interest or penalties are incurred by V▇▇▇▇▇▇▇▇▇ with respect to such excise tax (such tax or taxesexcise tax, together with any such interest or and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), thenthen the Company shall pay an additional payment, not to exceed the amount of V▇▇▇▇▇▇▇▇▇’▇ then current Base Salary in the aggregate (a “Gross-Up Payment”), in the event an amount such that the after-tax value after payment by V▇▇▇▇▇▇▇▇▇ of all Payments taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Executive Gross-Up Payment, V▇▇▇▇▇▇▇▇▇ retains an amount of the Gross-Up Payment equal to fifty percent (such after-tax value to reflect the deduction 50%) of the Excise Tax and all income or other taxes imposed on such the Payments) would, in . V▇▇▇▇▇▇▇▇▇ will bear the aggregate, be less than the after-tax value to the Executive cost of the Safe Harbor Amount, remaining fifty percent (a50%) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value aggregate Gross-Up Payments from the Company have reached the amount of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor AmountV▇▇▇▇▇▇▇▇▇’▇ then current Base Salary, and (b) if the reduction of the cash portions of the Paymentswill thereafter bear all additional taxes, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs interest or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and penalties. (c) if In the reduction event of any dispute as to the applicability or amount of any Gross-Up Payment, all cash portions determinations required to be made under this Section 3.9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the independent public accounting firm regularly employed by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and to V▇▇▇▇▇▇▇▇▇ within fifteen (15) business days after the receipt of notice from V▇▇▇▇▇▇▇▇▇ that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the PaymentsAccounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by V▇▇▇▇▇▇▇▇▇, payable pursuant it shall furnish V▇▇▇▇▇▇▇▇▇ with a written statement that failure to this Agreement or otherwise, to zero report the Excise Tax on V▇▇▇▇▇▇▇▇▇’▇ applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be sufficient to reduce binding on the Parachute Value Company and V▇▇▇▇▇▇▇▇▇ unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of all Payments to uncertainty in the Safe Harbor Amount, then non-cash portions application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments may not have been made by the Company that should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. If V▇▇▇▇▇▇▇▇▇ thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be reducedpromptly paid by the Company to or for the benefit of V▇▇▇▇▇▇▇▇▇, consistent with the maximum limitation stated in this Section 3.9. In the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be event it is determined by the Accounting Firm that the Gross Payments previously made by the Company and exceeded the limitations stated in this Section 3.9, upon written notice from the Company, accompanied by a copy of the Accounting Firm’s outside auditorscalculation of same, the amount of such overpayment shall be promptly paid by V▇▇▇▇▇▇▇▇▇ to the Company.

Excess Parachute Payments. (i) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveExecutive pursuant to Section 7, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangementarrangement in connection with a Change in Control, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Severance Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “Excise Tax”), thenthen the 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 interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Severance Payments. (ii) Subject to the provisions of Section 11(a)(i) hereof, all determinations required to be made under this Section 11, including whether an Excise Tax is payable by the Executive and the amount of such Excise 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 Termination 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 Excise 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 Excise 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/she has substantial authority not to report any Excise Tax on Executive’s federal, state, local income or other tax return. Any 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 Services 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 Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law 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 10 hereof and the Executive thereafter is required to make a payment of any Excise 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. (iii) The federal, state and local income or other 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 consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by the Executive. The Executive shall make proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of Executive’s federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, 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, or corresponding state or local tax return, if relevant, the Accounting Firm determines 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. (iv) 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 11(a) hereof. (v) The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Sections 11(a)(ii) and (iv) 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 Executive’s payment thereof. Notwithstanding the immediately preceding, reimbursement of fees and expenses under this Section 11(a)(v) must be made before the end of the Executive’s taxable year next following the Executive’s taxable year in which such fee or expense was incurred. The amount of fees or expenses eligible for reimbursement under this Section 11(a)(v) during a year may not affect the fees or expenses eligible for reimbursement under this Section 11(a)(v) in any other taxable year. (b) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement constitutes an “excess parachute payment,” within the meaning of Section 280G(b)(1) of the Code, the Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but no later than 10 business days after the 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. 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 writing 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; (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 value basis, for and against any Excise Tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (c) The Company shall control all Payments 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 pay the tax claimed and direct the Executive to ▇▇▇ for a refund or direct the Executive to contest the claim in any permissible manner, and the 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 Company shall determine; provided, however, that if the Company pays such claim and directs the Executive to ▇▇▇ for a refund, the Company shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or other tax (including interest and penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment; and provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a corporate deduction would be disallowed pursuant to Section 280G of the Code and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the 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 (including any other tax position of the Executive unrelated to matters covered hereby). (d) If, after payment by the Company in connection with the contest of the Excise Tax claim, the Executive becomes entitled to receive any refund with respect to such claim, the 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 paid by the Company or it is otherwise determined for any reason that additional amounts could be paid to the Executive without incurring any Excise Tax, any such amount will be promptly paid by the Company to the Executive (or shall be applied to reduce any amount that Executive would otherwise be required to pay the Company). If, after payment by the Company in connection with an Excise Tax claim, a determination is made that the Executive shall not be entitled to any refund with respect to such after-tax value claim and the Company does not notify the Executive in writing of its intent to reflect contest the deduction denial of such refund prior to the expiration of 30 days after such determination, the Company shall have no claim against the Executive for the amount paid and such amount shall be deemed to be in consideration for services rendered after the date of the Excise Tax and all income or other taxes on such PaymentsTermination. (e) wouldNotwithstanding the foregoing, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, payment described in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (cSection 11(c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be is determined by the Company to be impermissible under applicable law, then no such payment shall be made, nor shall the Company direct the Executive to pay the tax claimed and ▇▇▇ for a refund. (f) Subject to Section 11(e), the CompanyCompany shall make any payment required under this Section 11 (other than payments reimbursing the Executive for professional fees and expenses already addressed in this Section 11) to the Executive as soon as practicable after any Excise Tax is paid by the Executive; provided, however, that such payments must be made before the end of the Executive’s outside auditorstaxable year next following the Executive’s taxable year in which the Executive remits such taxes. In addition, a right to a payment under this Section 11 that is incurred due to a tax audit or litigation addressing the existence or amount of a tax liability, such payment must be made by the end of the year following the year in which the taxes that are the subject of the audit or litigation are remitted, or where as a result of such audit or litigation no taxes are remitted, the end of the year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution to the litigation.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment payment, benefit, entitlement or distribution by the Company (or any Employer of its subsidiaries or affiliates) or, by the person(s) or entity or entities effecting the change in control or change in ownership of a substantial portion of the assets of a corporation, to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, pursuant to or by reason of any other agreement, policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing foregoing) (a “Payment”), would (i) would be subject to constitute a “parachute payment” within the excise tax imposed by meaning of Section 4999 280G of the Code (or any successor provision theretothereto or any similar statute or code), and (iii) but for this sentence, be subject to excise tax imposed by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, plans, programs programs, or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor AmountAmount; provided that in all events any Payment which receives the favorable valuation under Q&A-24 (b) and (c) of Treas. Reg. §1-280G shall not be reduced before all Payments which do not receive such favorable valuation have been reduced. All calculations under this section Section shall be determined by a national accounting firm selected by the Company and (which may include the Company’s outside auditors). The Company shall pay all costs to obtain and provide such calculations to Employee and the Company and such calculations shall be provided to any Payment being paid to Employee. For purposes of this Agreement, the “Parachute Value” of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. (A) If it is determined (as hereafter provided) that any payment payment, benefit or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, restricted stock award, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Severance Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “"contingent on a change in ownership or control” " of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “"Excise Tax”"), thenthen Executive shall receive the greater of (x) the aggregate amount of the Severance Payments, in the event that the after-tax value of all Payments to the after payment by Executive (such after-tax value to reflect the deduction of the Excise Tax imposed on the aggregate Severance Payments, and (y) the aggregate amount of the Severance Payments which could be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company under such Section (the "Capped Payments"); provided, however, that if the aggregate amount in clause (x) of this subparagraph (A) is at least 125% of the aggregate amount determined under clause (y) of this subparagraph (A), the Company shall make additional payments (each, a "Gross-Up Payment") to Executive such that, after payment of all Excise Taxes and any other taxes payable in respect of such Gross-Up Payment, Executive shall retain the same amount as if no Excise Tax had been imposed. Notwithstanding the preceding sentence, the Company's obligation to make a Gross-Up Payment shall be subject to Executive's satisfaction of the release requirements set forth in Section 8(f)(ii) to the extent the Gross-Up Payment is related to a Severance Payment that is payable upon termination of Executive's employment. If the Executive will be paid the Capped Payments pursuant to clause (y) of this subparagraph (A), then the Executive's aggregate Severance Payments shall be reduced in the following order (i) cash severance pay that is exempt from Section 409A, (ii) any lump sum described in Section 8(c)(iii)(C)(I)(2), (iii) any other cash severance pay, (iv) any other cash payable that is a Severance Payment other than stock appreciation rights, (v) any stock appreciation rights, (vi) any restricted stock, and (vii) stock options. (B) Subject to the provisions of Section 8(d)(iii)(A) hereof, all determinations required to be made under this Section 8(d), including whether an Excise Tax is payable by Executive and the amount of such Excise Tax, shall be made by the nationally recognized firm of certified public accountants (the "Accounting Firm") used by the Company prior to the relevant "change in ownership or control" (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by Executive). 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 date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Excise Tax is payable by Executive, the Company shall either (x) make payment of the Severance Payments, less all amounts withheld in respect of the Excise Tax, as required by applicable law, (or, if applicable, the Gross-Up Payment) or (y) reduce the Severance Payments (as described in the last sentence of subparagraph (A) above) by the amounts which, based on the Accounting Firm's determination and calculations, would provide Executive with the Capped Payments, and pay to Executive such reduced amounts. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall, at the same time as it makes such determination, furnish Executive with an opinion that she has substantial authority not to report any Excise Tax on her federal, state, local income or other taxes tax return. All fees and expenses of the Accounting Firm shall be paid by the Company in connection with the calculations required by this Section. (C) If the Company is obligated to make a Gross-Up Payment, it will be paid to Executive, or remitted by the Company to the appropriate tax authorities to the extent subject to withholding, in a lump sum (I) in the case of Gross-Up Payment that is subject to the release requirements set forth in Section 8(f)(ii), on the later of (x) the date that the Excise Tax is due (through withholding or otherwise) or (y) the first day following the Expiration Date, or (II) in the case of any other Gross-Up Payment, on the date that the Excise Tax is due (through withholding or otherwise), but subject in each case to any six-month delay that is applicable in accordance with Section 13(p). (D) The federal, state and local income or other 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 consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive shall make proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of her federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such Paymentsother documents reasonably requested by the Company, evidencing such payment. (E) wouldIt is possible that, after the determinations made pursuant to this Section 8(d)(iii), Executive will receive Severance Payments and Gross-Up Payments that are, in the aggregate, be either more or less than the after-tax value amounts provided in subparagraph (A) of this Section 8(d)(iii) (hereafter referred to as an "Excess Payment" or "Underpayment", respectively). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding, that an Excess Payment has been made, then Executive shall refund the Excess Payment to the Executive Company promptly on demand, together with an additional payment in an amount equal to the product obtained by multiplying the Excess Payment times the applicable annual federal rate (as determined in and under Section 1274(d) of the Safe Harbor AmountCode) times a fraction whose numerator is the number of days elapsed from the date of Executive's receipt of such Excess Payment through the date of such refund and whose denominator is 365. In the event that it is determined (x) by arbitration under Section 12 below, (ay) by a court of competent jurisdiction, or (z) by the cash portions Accounting Firm upon request by Executive or the Company, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to Executive within 10 days of such determination together with an additional payment in an amount equal to the product obtained by multiplying the Underpayment times the applicable annual federal rate (as determined in and under Section 1274(d) of the Payments payable to Code) times a fraction whose numerator is the Executive under this Agreement shall be reduced, in number of days elapsed from the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction date of the cash portions Underpayment through the date of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, such payment and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorswhose denominator is 365.

Excess Parachute Payments. (i) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Severance Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “"contingent on a change in ownership or control” " of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “"Excise Tax”"), then, in the event that the after-tax value of all Payments to then the Executive shall receive the greater of (such after-tax value to reflect x) the deduction Severance Payment, after payment by the Executive of the Excise Tax imposed on the Severance Payment and all income or other taxes (y) the amount of the Severance Payment (calculated on such Payments) would, in the aggregate, be less than the a net after-tax value to the Executive of the Safe Harbor Amount, (abasis) the cash portions of the Payments payable which could be paid to the Executive under Section 280G of the Code without causing any loss of deduction to the Company under such Section (the "Capped Payment"). (ii) Subject to the provisions of Section 6(a)(i) hereof, all determinations required to be made under this Agreement Section 6, including whether an Excise Tax is payable by the Executive and the amount of such Excise Tax, shall be reduced, in made by the order in which they are due to be paid, until nationally recognized firm of certified public accountants (the Parachute Value of all Payments paid "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, in ). The Accounting Firm shall be directed by the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Company or the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid submit its preliminary determination and detailed supporting calculations to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by both the Company and the Executive within 15 calendar days after the Termination 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 Excise Tax is payable by the Executive, the Company shall either (x) make payment of the Severance Payment, less all amounts withheld in respect of the Excise Tax, as required applicable law, or (y) reduce the Severance Payment by the amount which, based on the Accounting Firm's determination and calculations, would provide the Executive with the Capped Payment, and pay to the Executive such reduced amount. If the Accounting Firm determines that no Excise 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 Excise Tax on his/her federal, state, local income or other tax return. (iii) The federal, state and local income or other tax returns filed by the Executive (or any filing made by a consolidated tax group which includes the Company’s outside auditors) shall be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by the Executive. The Executive shall make proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his/her federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” effective control of Company or of a substantial portion of the assets of Company, within the meaning of Section 280G of the Code (or any successor provision thereto) ), or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “"Excise Tax”"), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee's "base amount" within the meaning of Section 280G(b)(3) of the Code (the "Safe Harbor Amount"), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, plans, programs programs, or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount. All calculations under this section Section shall be determined by the a national accounting firm selected by Company and the (which may include Company’s 's outside auditors). Company shall pay all costs to obtain and provide such calculations to Employee and Company. For purposes of this Agreement, the "Parachute Value" of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. (a) If there is a “change of control” of the Company within the meaning of Section 2800 of the Internal Revenue Code of 1986, as amended (the “Code”), a portion of the benefits to which Banker is entitled under this Agreement could be characterized as “excess parachute payments” within the meaning of Section 2800 of the Code. The parties hereto acknowledge that the protections set forth in this Section 3.9 are important, and it is agreed that Banker should not have to bear the full burden of the excise tax that might be levied under Section 4999 of the Code or any similar provision of federal, state of local law, in the event that any portion of the benefits payable to Banker pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 3.9. (b) Anything in this Agreement to the contrary notwithstanding, Whenever it shall be determined (as hereafter provided) that any payment or distribution (including income recognized by Banker upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any Employer other Person to or for the benefit of the Executive, Banker (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant otherwise, but determined without regard to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing additional payments required under this Section 3.9 (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor similar provision thereto) by reason of being “contingent on a change in ownership or control” of the Companyany federal, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, law or any interest or penalties are incurred by Banker with respect to such excise tax (such tax or taxesexcise tax, together with any such interest or and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), thenthen the Company shall pay an additional payment, not to exceed the amount of Banker’s then current Base Salary in the aggregate (a “Gross-Up Payment”), in the event an amount such that the after-tax value after payment by Banker of all Payments taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Executive Gross-Up Payment, Banker retains an amount of the Gross-Up Payment equal to fifty percent (such after-tax value to reflect the deduction 50%) of the Excise Tax and all income or other taxes imposed on such the Payments) would, in . Banker will bear the aggregate, be less than the after-tax value to the Executive cost of the Safe Harbor Amount, remaining fifty percent (a50%) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value aggregate Gross-Up Payments from the Company have reached the amount of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor AmountBanker’s then current Base Salary, and (b) if the reduction of the cash portions of the Paymentswill thereafter bear all additional taxes, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs interest or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and penalties. (c) if In the reduction event of any dispute as to the applicability or amount of any Gross- Up Payment, all cash portions determinations required to be made under this Section 9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the independent public accounting firm regularly employed by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and to Banker within 15 business days after the receipt of notice from Banker that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the PaymentsAccounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by Banker, payable pursuant it shall furnish Banker with a written statement that failure to this Agreement or otherwise, to zero report the Excise Tax on Banker’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be sufficient to reduce binding on the Parachute Value Company and Banker unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of all Payments to uncertainty in the Safe Harbor Amount, then non-cash portions application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments may not have been made by the Company that should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. If Banker thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be reducedpromptly paid by the Company to or for the benefit of Banker, consistent with the maximum limitation stated in this Section 3.9. In the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be event it is determined by the Accounting Firm that the Gross Payments previously made by the Company and exceeded the limitations stated in this Section 3.9, upon written notice from the Company, accompanied by a copy of the Accounting Firm’s outside auditorscalculation of same, the amount of such overpayment shall be promptly paid by Banker to the Company.

Excess Parachute Payments. If it is determined Notwithstanding any other provision of this Agreement, if either the Company or the Executive receives confirmation from the Company’s independent tax counsel or its certified public accounting firm (as hereafter providedthe “Tax Advisor”) that any portion of any payment or distribution by the Company or any Employer a related entity to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to any benefit received by the terms of Executive, under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (each a “Payment”) would be subject considered to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being be an “contingent on a change in ownership or controlexcess parachute payment” of the Company, within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, (the “Code”) or any successor provision theretoor similar statute then in effect, then the Payments (under this Agreement or otherwise) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax shall be reduced (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxReduction”), then) to the highest amount that, in the event that opinion of the after-tax value of all Payments Tax Advisor, may be paid to the Executive (such after-tax value by the Company without having any portion of any Payment treated as an “excess parachute payment;” provided that the Company may elect, in its sole and absolute discretion, not to reflect apply the deduction of the Excise Tax and all income or other taxes on such Payments) wouldReduction if, in the aggregateopinion of the Tax Advisor, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) total Payments prior to the cash portions of Reduction is greater than the Payments payable after-tax value to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction total Payments are determined taking into account the Reduction. For purposes of determining the cash portions after-tax value of the Payments, payable under this Agreement, (i) the Executive shall be deemed to zero would not be sufficient to reduce pay income taxes at the Parachute Value highest rate of all Payments to federal income tax and the Safe Harbor Amount, then any cash portions highest rate or rates of state and local income taxes in the state and locality of the Executive’s domicile for income tax purposes for the taxable year in which the total Payments payable to will be made, provided that the state and local income tax rate shall be determined assuming that such taxes are fully deductible for federal income tax purposes, (ii) the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in deemed to pay employment taxes at the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amountapplicable rate under Code Section 3101(b), and (ciii) if the reduction of all cash portions of Executive shall be deemed to pay excise tax at the Paymentsapplicable rate under Code Section 4999. In the event the Reduction is applied, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, reduced by the Company in its reasonable discretion in the order in which they following order: (i) reduction of any Payments that are due subject to be paidCode Section 409A on a pro-rata basis or such other manner that complies with Code Section 409A, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be as determined by the Company Company, and the Company’s outside auditors.(ii) reduction of any Payments that are exempt from Code Section 409A.

Excess Parachute Payments. (A) If it is determined (as hereafter provided) that any payment payment, benefit or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, restricted stock award, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Severance Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “"contingent on a change in ownership or control” " of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “"Excise Tax”"), thenthen Executive shall receive the greater of (x) the aggregate amount of the Severance Payments, in the event that the after-tax value of all Payments to the after payment by Executive (such after-tax value to reflect the deduction of the Excise Tax imposed on the aggregate Severance Payments, and (y) the aggregate amount of the Severance Payments which could be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company under such Section (the "Capped Payments"). (B) Subject to the provisions of Section 8(d)(iii)(A) hereof, all determinations required to be made under this Section 8(d), including whether an Excise Tax is payable by Executive and the amount of such Excise Tax, shall be made by the nationally recognized firm of certified public accountants (the "Accounting Firm") used by the Company prior to the "change in ownership or control (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by Executive). 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 date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Excise Tax is payable by Executive, the Company shall either (x) make payment of the Severance Payments, less all amounts withheld in respect of the Excise Tax, as required by applicable law, or (y) reduce the Severance Payments by the amount which, based on the Accounting Firm's determination and calculations, would provide Executive with the Capped Payments, and pay to Executive such reduced amounts. If the Accounting Firm determines that no Excise Tax is payable by Executive, 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 Excise Tax on his federal, state, local income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive return. All fees and expenses of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement Accounting Firm shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company in connection with the calculations required by this Section. (C) The federal, state and local income or other tax returns filed by Executive (or any filing made by a consolidated tax group which includes the Company’s outside auditors) shall be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive shall make proper payment of the amount of any Excise 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 corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for BHI or the Company (as hereafter provided) the “Accountants”), that any payment payment, benefit or distribution by the Company Company, ▇▇▇▇ or any Employer of their respective subsidiaries or affiliates (a “Payment”) constitute “parachute payments” under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the “Parachute Amount”) exceeds 2.99 times the Executive’s “base amount”, as defined in Section 280G(h)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Executive shall be reduced to the terms of this Agreement or otherwise pursuant extent necessary so that the Parachute Amount is equal to or by reason of any other agreement2.99 times the Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after tax basis, that the Executive would be entitled to retain upon his receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 12 results in a reduction of the payments that would otherwise be paid to Executive except for the application of clause (a) of this Section 12, within each particular entitlement of Executive shall be eliminated or reduced as follows: (i) first all cash payments, pro rata; and then (ii) all remaining benefits, pro rata. (c) As a result of the meaning uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 12 (“Overpayment”) or that additional payments which are not made by the Company pursuant to any similar tax imposed clause (a) of this Section 12 should have been made (“Underpayment”). In the event that there is a final determination by state or local lawthe Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made and that repayment will eliminate any interest or penalties with respect to such excise tax (otherwise due under Section 4999 of the Code, any such tax Overpayment shall be repaid by Executive to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or taxesa change in the provisions of the Code or regulations pursuant to which an Underpayment arises, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive, together with any such interest or penalties, are hereafter collectively referred to as at the “Excise Tax”), then, applicable Federal rate provided for in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction Section 7872(f)(2) of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsCode.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” effective control of the Company or of a substantial portion of the assets of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) ), or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “"Excise Tax”"), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee's "base amount" within the meaning of Section 280G(b)(3) of the Code (the "Safe Harbor Amount"), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, plans, programs programs, or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-non cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount. All calculations under this section Section shall be determined by a national accounting firm selected by the Company (which may include the Company's outside auditors). The Company shall pay all costs to obtain and provide such calculations to Employee and the Company’s outside auditors. For purposes of this Agreement, the "Parachute Value" of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. (i) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveExecutive pursuant to Section 7, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangementarrangement in connection with a Change in Control, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Severance Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “Excise Tax”), thenthen the 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 interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Severance Payments. (ii) Subject to the provisions of Section 11(a)(i) hereof, all determinations required to be made under this Section 11, including whether an Excise Tax is payable by the Executive and the amount of such Excise 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 Termination 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 Excise 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 Excise 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/she has substantial authority not to report any Excise Tax on Executive’s federal, state, local income or other tax return. Any 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 Services 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 Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law 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 10 hereof and the Executive thereafter is required to make a payment of any Excise 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. (iii) The federal, state and local income or other 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 consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by the Executive. The Executive shall make proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of Executive’s federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, 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, or corresponding state or local tax return, if relevant, the Accounting Firm determines 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. (iv) 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 11(a) hereof. (v) The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Sections 11(a)(ii) and (iv) 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 Executive’s payment thereof. Notwithstanding the immediately preceding, reimbursement of fees and expenses under this Section 11(a)(v) must be made before the end of the Executive’s taxable year next following the Executive’s taxable year in which such fee or expense was incurred. The amount of fees or expenses eligible for reimbursement under this Section 11(a)(v) during a year may not affect the fees or expenses eligible for reimbursement under this Section 11(a)(v) in any other taxable year. (b) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement constitutes an “excess parachute payment,” within the meaning of Section 280G(b)(1) of the Code, the Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but no later than 10 business days after the 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. 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 writing 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; (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 value basis, for and against any Excise Tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (c) The Company shall control all Payments 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 pay the tax claimed and direct the Executive to ▇▇▇ for a refund or direct the Executive to contest the claim in any permissible manner, and the 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 Company shall determine; provided, however, that if the Company pays such claim and directs the Executive to ▇▇▇ for a refund, the Company shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or other tax (including interest and penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment; and provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company's control of the contest shall be limited to issues with respect to which a corporate deduction would be disallowed pursuant to Section 280G of the Code and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the 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 (including any other tax position of the Executive unrelated to matters covered hereby). (d) If, after payment by the Company in connection with the contest of the Excise Tax claim, the Executive becomes entitled to receive any refund with respect to such claim, the 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 paid by the Company or it is otherwise determined for any reason that additional amounts could be paid to the Executive without incurring any Excise Tax, any such amount will be promptly paid by the Company to the Executive (or shall be applied to reduce any amount that Executive would otherwise be required to pay the Company). If, after payment by the Company in connection with an Excise Tax claim, a determination is made that the Executive shall not be entitled to any refund with respect to such after-tax value claim and the Company does not notify the Executive in writing of its intent to reflect contest the deduction denial of such refund prior to the expiration of 30 days after such determination, the Company shall have no claim against the Executive for the amount paid and such amount shall be deemed to be in consideration for services rendered after the date of the Excise Tax and all income or other taxes on such PaymentsTermination. (e) wouldNotwithstanding the foregoing, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, payment described in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (cSection 11(c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be is determined by the Company to be impermissible under applicable law, then no such payment shall be made, nor shall the Company direct the Executive to pay the tax claimed and ▇▇▇ for a refund. (f) Subject to Section 11(e), the CompanyCompany shall make any payment required under this Section 11 (other than payments reimbursing the Executive for professional fees and expenses already addressed in this Section 11) to the Executive as soon as practicable after any Excise Tax is paid by the Executive; provided, however, that such payments must be made before the end of the Executive’s outside auditorstaxable year next following the Executive’s taxable year in which the Executive remits such taxes. In addition, a right to a payment under this Section 11 that is incurred due to a tax audit or litigation addressing the existence or amount of a tax liability, such payment must be made by the end of the year following the year in which the taxes that are the subject of the audit or litigation are remitted, or where as a result of such audit or litigation no taxes are remitted, the end of the year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution to the litigation.

Excess Parachute Payments. If 7.1 Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it is shall be determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) Payment would be subject to the excise tax imposed Excise Tax, then Executive shall be entitled to receive an additional payment (the “Gross-Up Payment”) in an amount such that, after payment by Section 4999 Executive of the Code all taxes (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or and any interest or penalties imposed with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), thenincluding, in without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the event Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Code, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 7.1, if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the after-tax value Parachute Value of all Payments to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive does not exceed 110% of the Safe Harbor Amount, (a) then no Gross-Up Payment shall be made to Executive and the cash portions of the Payments amounts payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until reduced so that the Parachute Value of all Payments paid to the ExecutivePayments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash severance payments. For purposes of reducing the Payments to the Safe Harbor Amount, only the cash severance payments payable under this Agreement (and (bno other Payments) if shall be reduced. If the reduction of the amount of cash portions of the Payments, severance payments payable under this Agreement, to zero Agreement would not be sufficient to reduce result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions no amounts payable under the Agreement shall be reduced pursuant to this Section 7.1. The Company’s obligation to make Gross-Up Payments under this Section 7 shall not be conditioned upon Executive’s termination of employment. 7.2 Subject to the provisions of Section 7.3, all determinations required to be made under this Section 7, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Pricewaterhouse Coopers, or such other nationally recognized certified public accounting firm as may be designated by Executive (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized 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. Any determination by the 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 initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments payable that will not have been made by the Company should have been made (the “Underpayment”), consistent with the calculations required to be made hereunder. In the event the Company exhausts its remedies pursuant to Section 7.3 and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. 7.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than 10 business days after Executive is informed in writing of such claim. The Executive shall apprise the Company of the 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 Executive under 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 writing prior to the expiration of such period that the Company desires to contest such claim, Executive shall: 1. give the Company any information reasonably requested by the Company relating to such claim, 2. 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, 3. cooperate with the Company in good faith in order effectively to contest such claim; and 4. 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 additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 7.3, the Company shall control all proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole discretion, either pay the tax claimed to the appropriate taxing authority on behalf of Executive and direct Executive to ▇▇▇ for a refund or contest the claim 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 Company shall determine; provided, however, that, if the Company pays such claim and directs Executive to ▇▇▇ for a refund, the Company shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such payment or with respect to any imputed income in connection with such payment; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which the Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case may be, any other agreementsissue raised by the Internal Revenue Service or any other taxing authority. 7.4 If, policiesafter the receipt by Executive of a Gross-Up Payment or payment by the Company of an amount on Executive’s behalf pursuant to Section 7.3, plansExecutive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such claim, programs Executive shall (subject to the Company’s complying with the requirements of Section 7.3, if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or arrangements credited thereon after taxes applicable thereto). If, after payment by the Company of an amount on Executive’s behalf pursuant to Section 7.3, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then the amount of such payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 7.5 Any Gross-Up Payment, as determined pursuant to this Section 7, shall be reducedpaid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination; provided that, the Gross-Up Payment shall in all events be paid no later than the end of Executive’s taxable year next following Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service or any other applicable taxing authority or, in the order case of amounts relating to a claim described in Section 7.3 that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which they are due to be paidthe claim is finally settled or otherwise resolved. Notwithstanding any other provision of this Section 7, until the Parachute Value of all Payments paid Company may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of Executive, in the aggregate, equals the Safe Harbor Amountall or any portion of any Gross-Up Payment, and (c) if the reduction of all cash portions of the Payments, payable pursuant Executive hereby consents to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorssuch withholding.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment payments or distribution benefits received or to be received by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable Employee pursuant to the terms of this Agreement or otherwise pursuant to in connection with or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or controlcontrol are deemed to be an “excess parachute payment” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxExcess Parachute Payment”), then, at the Company’s election, such payments under this Agreement shall either be paid in full or reduced to the extent necessary to avoid being considered an Excess Parachute Payment, based upon the Company’s determination, in its sole discretion, as to which alternative results in the better tax consequences for Employee. Notwithstanding any other provision of this Agreement to the contrary, if any payments or benefits provided or to be provided to or for the benefit of Employee (or Employee’s beneficiary, legal representatives or estate, as the case may be) by the Company (or any successors thereto) (the “Payments”) that, but for this Section 4, would be considered Excess Parachute Payments, then such Payments shall be limited to the greatest amount which may be paid or provided to or in respect of under Section 280G of the Code without causing the imposition of an excise tax on Employee under Section 4999 of the Code (or any successor provision), but only if, by reason of such reduction, the net after-tax benefit to Employee of such reduced Payments shall exceed the net after-tax benefit of the Payments if such reduction were not made. The determination of whether any of the Payments would be considered Excess Parachute Payments and the calculation of all the amounts referred to in this Section 4, including the relative net after-tax benefits (which shall take into account, without limitation, all applicable federal, state and local employment, income and excise taxes), shall be made by a nationally or regionally recognized accounting firm selected by the Company (the “Accounting Firm”). The Company and Employee agree to cooperate generally and in good faith regarding such determination. Any final determination by the Accounting Firm shall be binding upon the Company and Employee. In the event that the after-tax value of all Payments to or in respect of Employee are to be reduced in accordance with this Section 4, the Executive reductions shall be made in the following order: (such after-tax value i) any Payments that became fully vested prior to reflect the deduction Change in Control triggering application of this Section 4 and that pursuant to paragraph (b) of Treas. Reg. §1.280G-1, Q/A 24 are treated as Excess Parachute Payments solely by reason of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive acceleration of the Safe Harbor Amount, (a) the cash portions their originally scheduled dates of the Payments payable to the Executive under this Agreement payment shall be reduced, in by cancellation of the order in which they are due to be paid, until the Parachute Value acceleration of all Payments paid their dates of payment to the Executiveextent that would not result in Employee being subject to a tax under Section 409A of the Code; (ii) any severance payments or benefits, performance-based cash or performance-based equity incentive awards, or other Payments, in all cases the aggregatefull amounts of which are treated as contingent on the triggering Change in Control under Section 280G of the Code pursuant to paragraph (a) of Treas. Reg. §1.280G-1, equals Q/A 24, shall be reduced to the Safe Harbor Amountextent that such reduction would not result in Employee being subject to a tax under Section 409A of the Code; (iii) any equity incentive awards, or cash nonqualified deferred compensation amounts, that vest solely based on Employee’s continued service with the Company, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, that pursuant to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and paragraph (c) if of Treas. Reg. §1.280G-1, Q/A 24 are treated as contingent on the reduction of all cash portions triggering Change in Control event under Section 280G of the Payments, payable pursuant to this Agreement or otherwiseCode because they become vested as a result thereof, to zero the extent that such reduction would not be sufficient result in Employee being subject to reduce a tax under Section 409A of the Parachute Value of all Payments Code; and (iv) reduction in any other payments or benefits to the Safe Harbor Amount, then non-cash portions extent necessary but in a manner that would not result in Employee being subject to a tax under Section 409A of the Code. Within each such category, the Payments that will result in the greatest present value reduction in the Payments with the least reduction in economic value to Employee shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsreduced first.

Excess Parachute Payments. (a) If there is a "change of control" of the Company within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), a portion of the benefits to which ▇▇▇▇▇▇▇▇ is entitled under this Agreement could be characterized as "excess parachute payments" within the meaning of Section 280G of the Code. The parties hereto acknowledge that the protections set forth in this Section 3.10 are important, and it is agreed that ▇▇▇▇▇▇▇▇ should not have to bear the full burden of the excise tax that might be levied under Section 4999 of the Code or any similar provision of federal, state of local law, in the event that any portion of the benefits payable to ▇▇▇▇▇▇▇▇ pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 3.10. (b) Anything in this Agreement to the contrary notwithstanding, if it shall be determined (as hereafter provided) that any payment or distribution (including income recognized by ▇▇▇▇▇▇▇▇ upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any Employer other Person 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 pursuant otherwise, but determined without regard to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing additional payments required under this Section 3.10 (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Code (or any successor similar provision thereto) by reason of being “contingent on a change in ownership or control” of the Companyany federal, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, law or any interest or penalties are incurred by ▇▇▇▇▇▇▇▇ with respect to such excise tax (such tax or taxesexcise tax, together with any such interest or and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), thenthen the Company shall pay an additional payment, not to exceed the amount of ▇▇▇▇▇▇▇▇'▇ then current Base Salary in the aggregate (a "Gross-Up Payment"), in the event an amount such that the after-tax value after payment by ▇▇▇▇▇▇▇▇ of all Payments taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Executive Gross-Up Payment, ▇▇▇▇▇▇▇▇ retains an amount of the Gross-Up Payment equal to fifty percent (such after-tax value to reflect the deduction 50%) of the Excise Tax and all income or other taxes imposed on such the Payments) would, in . ▇▇▇▇▇▇▇▇ will bear the aggregate, be less than the after-tax value to the Executive cost of the Safe Harbor Amount, remaining fifty percent (a50%) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value aggregate Gross-Up Payments from the Company have reached the amount of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount▇▇▇▇▇▇▇▇'▇ then current Base Salary, and (b) if the reduction of the cash portions of the Paymentswill thereafter bear all additional taxes, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs interest or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and penalties. (c) if In the reduction event of any dispute as to the applicability or amount of any Gross-Up Payment, all cash portions determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the independent public accounting firm regularly employed by the Company (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and to ▇▇▇▇▇▇▇▇ within 15 business days after the receipt of notice from ▇▇▇▇▇▇▇▇ that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the PaymentsAccounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by ▇▇▇▇▇▇▇▇, payable pursuant it shall furnish ▇▇▇▇▇▇▇▇ with a written statement that failure to this Agreement or otherwise, to zero report the Excise Tax on ▇▇▇▇▇▇▇▇'▇ applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be sufficient to reduce binding on the Parachute Value Company and ▇▇▇▇▇▇▇▇ unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of all Payments to uncertainty in the Safe Harbor Amount, then non-cash portions application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments may not have been made by the Company that should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. If ▇▇▇▇▇▇▇▇ thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be reducedpromptly paid by the Company to or for the benefit of ▇▇▇▇▇▇▇▇, consistent with the maximum limitation stated in this Section 3.10. In the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be event it is determined by the Accounting Firm that the Gross Payments previously made by the Company and exceeded the limitations stated in this Section 3.10, upon written notice from the Company’s outside auditors, accompanied by a copy of the Accounting Firm's calculation of same, the amount of such overpayment shall be promptly paid by ▇▇▇▇▇▇▇▇ to the Company.

Excess Parachute Payments. If it is determined (as hereafter provided) that Anything in this Agreement to the contrary notwithstanding, if any payment portion of the payments or distribution by benefits under this Agreement, taken together with any other agreement or benefit plan of the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, (including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing options) (a “Payment”) 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 sentence, be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments then such Payment shall be equal to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, Reduced Amount. The “Reduced Amount” shall be less than the after-tax value to the Executive of the Safe Harbor Amount, either (a) the cash portions largest portion of the Payments payable Payment that would result in no portion of the Payment being subject to the Executive under this Agreement Excise Tax or (b) the Payment or a portion thereof after payment of the applicable Excise Tax, 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 greatest amount of the Payment. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall be reduced, occur in the order of payments Executive elects in writing, provided, however, that such election shall be subject to Company approval if made on or after the date on which they are due to the event that triggers the Payment occurs. If no such election is timely made, then such reductions shall first be paid, until the Parachute Value of all Payments paid made to the Executivebonus payments referred to in Section 5.1(a)(ii), (iii) or (iv), whichever is applicable, then to the salary continuation payments referred to in Section 5.1(c) and then to the aggregatesalary payments under Section 5.1(a)(i). The Company’s shall engage an outside accounting or consulting firm which will make all determinations hereunder and shall provide its calculations, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreementtogether with detailed supporting documentation, to zero would not be sufficient the Company and Executive within 15 calendar days after the date on which Executive’s right to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and a Payment is triggered (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. If the accounting or consulting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment. The Company shall be entitled to rely upon the Companyaccounting or consulting firm’s outside auditorsdeterminations, which shall be final and binding on all persons.

Excess Parachute Payments. If Anything in this Agreement to the contrary notwithstanding, in the event it is shall be determined (as hereafter provided) that any payment payment, award, benefit or distribution (including any acceleration) by the Company or any Employer entity which effectuates a transaction described in Section 280G(b)(2)(A)(i) of the Code to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined before application of any reductions required pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing this Section 9g) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred with respect to such excise tax by the Executive (such tax or taxesexcise tax, together with any such interest or and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Company will automatically reduce such Payments to the extent, but only to the extent, necessary so that no portion of the remaining Payments will be subject to the Excise Tax, unless the amount of such Payments that the Executive (such after-tax value to reflect the deduction would retain after payment of the Excise Tax and all applicable Federal, state and local income or other taxes on without such Payments) wouldreduction would exceed the amount of such Payments that the Executive would retain after payment of all applicable Federal, in state and local taxes after applying such reduction. Unless otherwise elected by the aggregateExecutive, be less than the after-tax value to the Executive of the Safe Harbor Amountextent permitted under Code Section 409A, (a) the cash portions of the Payments such reduction shall first be applied to any severance payments payable to the Executive under this Agreement Agreement, then to the accelerated vesting on any equity awards, starting with stock options reversing accelerated vesting of those options with the smallest spread between fair market value and exercise price first and after reversing the accelerated vesting of all stock options, thereafter reversing accelerated vesting of restricted stock on a pro rata basis. All determinations required to be made under this Section 9g, including the assumptions to be utilized in arriving at such determination, shall be reduced, in made by the order in which they are due to be paid, until the Parachute Value Company’s independent auditors or such other certified public accounting firm of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable national standing reasonably acceptable to the Executive under any other agreements, policies, plans, programs or arrangements as may be designated by the Company (the “Accounting Firm”) which shall be reduced, in the order in which they are due provide detailed supporting calculations both to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by either the Company or the Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company’s outside auditors. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion to such effect. Any determination by the Accounting Firm shall be binding upon the Company and the Executive.

Excess Parachute Payments. If it is determined Notwithstanding any other provision of this Agreement, in the event that the amount of payments or other benefits payable to the Associate under this Agreement (as hereafter provided) that including, without limitation, the acceleration of any payment or distribution the accelerated vesting of any payment or other benefit), together with any payments, awards or benefits payable under any other plan, program, arrangement or agreement maintained by the Company or any Employer to or for Company, would constitute an “excess parachute payment” (within the benefit meaning of Section 280G of the ExecutiveCode), whether paid or the payments otherwise constituting “excess parachute payments” shall be reduced (by the minimum possible amounts) until no amount payable or distributed or distributable pursuant to the terms Associate constitutes an “excess parachute payment” (within the meaning of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any Section 280G of the foregoing Code); provided, however, that no such reduction shall be made if the net after-tax payment (a “Payment”after taking into account federal, state, local or other income, employment and excise taxes) to which the Associate would otherwise be entitled without such reduction would be greater than the net after-tax payment (after taking into account federal, state, local or other income, employment and excise taxes) to the Associate resulting from the receipt of such payments with such reduction. In applying any such reduction, to the extent any such payments may be subject to Code Section 409A, the excise tax imposed by reduction shall first be applied to any payments under Section 4999 2.A(iii) hereof on a pro rata basis, and next to the remaining payments on a pro rata basis in proportion to the amount of the Code (or any successor provision thereto) by reason of being such payments that are considered “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code Code. All determinations required to be made under this Section 8, including whether a payment would result in an “excess parachute payment” and the assumptions to be utilized in arriving at such determinations, shall be made by a nationally recognized accounting or consulting firm designated by the Company (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxAccounting Firm”), then, in the event that the after-tax value of all Payments ) which shall provide detailed supporting calculations both to the Executive (such after-tax value to reflect Company and the deduction Associate as requested by the Company or the Associate. All fees and expenses of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement Accounting Firm shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined borne solely by the Company and shall be paid by the Company’s outside auditors. Absent manifest error, all determinations made by the Accounting Firm under this Section 8 shall be final and binding upon the Company and the Associate.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” effective control of the Company or of a substantial portion of the assets of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state and local income, employment and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive (reflecting a reduction for all such taxes in a like manner) of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by a national accounting firm selected by the Company and reasonably acceptable to the Executive (which may include the Company’s outside auditors) and provided to the Company and the Executive within fifteen days prior to the date on which any Payment is payable to the Executive. The Company shall pay all costs to obtain and provide such calculations to the Executive and the Company.

Excess Parachute Payments. If it is determined (as hereafter provided) that Notwithstanding any payment or distribution by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms provision of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program agreement or arrangement, plan to the contrary (including without limitation any stock optionlesser protection of Executive under any equity-based award agreement), stock appreciation right if any amount or similar right, benefit to be paid or the lapse provided under this Agreement or termination of any restriction on other agreement or the vesting or exercisability of any of the foregoing (a “Payment”) plan would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being an “contingent on a change in ownership or controlexcess parachute payment” of the Company, within the meaning of under Section 280G of the Code (an “Excess Parachute Payment”) (including after taking into account the value, to the maximum extent permitted by Section 280G of the Code, of the covenants herein), but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement and any other agreements and plans will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will not be made if such reduction would result in Executive receiving an amount determined on an after-tax basis, taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto) or to , any similar tax imposed by any comparable provision of state or law and any applicable federal, state and local law, or any interest or penalties with respect to such excise tax income and employment taxes (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxAfter Tax Amount”), then, in ) that is less than 90% of the event After-Tax Amount of the payments and benefits that the after-tax value of all Payments he would have received without regard to this clause. Whether requested by the Executive (or the Company, the determination of whether any reduction in such after-tax value payments or benefits to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive provided under this Agreement shall be reducedor otherwise is required pursuant to the preceding sentence, in and the order in which they are due value to be paid, until the Parachute Value of all Payments paid assigned to the Executive’s covenants herein for purposes of determining the amount, in the aggregateif any, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions Excess Parachute Payment will be made at the expense of the Payments, payable under this Agreement, Company by the Company’s independent accountants or benefits consultant. The fact that the Executive’s right to zero would not payments or benefits may be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions reduced by reason of the Payments payable to limitations contained in this Section will not of itself limit or otherwise affect any other rights of the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, any other agreement or plan. In the event that any payment or benefit intended to zero would not be sufficient provided is required to reduce the Parachute Value of all Payments be reduced pursuant to the Safe Harbor Amountthis Section, then non-cash portions the Company shall in good faith determine the appropriate treatment of payments or benefits, consistent with the Payments shall be reduced, in requirements of Section 409A that produces the order in which they are due to be paid, until the Parachute Value of all Payments paid to most advantageous economic outcome for the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section and its determination shall be determined final and binding on the Executive. The Company will provide the Executive with all information reasonably required or requested by the Company and Executive to demonstrate to the Company’s outside auditorsExecutive that it has complied with the immediately preceding sentence.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for BHI or the Company (as hereafter provided) the “Accountants”), that any payment payment, benefit or distribution by the Company Company, B▇▇▇ or any Employer of their respective subsidiaries or affiliates (a “Payment”) constitute “parachute payments” under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the “Parachute Amount”) exceeds 2.99 times the Executive’s “base amount”, as defined in Section 280G(h)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Executive shall be reduced to the terms of this Agreement or otherwise pursuant extent necessary so that the Parachute Amount is equal to or by reason of any other agreement2.99 times the Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after tax basis, that the Executive would be entitled to retain upon her receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 12 results in a reduction of the payments that would otherwise be paid to Executive except for the application of clause (a) of this Section 12, within each particular entitlement of Executive shall be eliminated or reduced as follows: (i) first all cash payments, pro rata; and then (ii) all remaining benefits, pro rata. (c) As a result of the meaning uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 12 (“Overpayment”) or that additional payments which are not made by the Company pursuant to any similar tax imposed clause (a) of this Section 12 should have been made (“Underpayment”). In the event that there is a final determination by state or local lawthe Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made and that repayment will eliminate any interest or penalties with respect to such excise tax (otherwise due under Section 4999 of the Code, any such tax Overpayment shall be repaid by Executive to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or taxesa change in the provisions of the Code or regulations pursuant to which an Underpayment arises, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive, together with any such interest or penalties, are hereafter collectively referred to as at the “Excise Tax”), then, applicable Federal rate provided for in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction Section 7872(f)(2) of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsCode.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for BHI or the Company (as hereafter provided) the “Accountants”), that any payment payment, benefit or distribution by the Company Company, BHI or any Employer of their respective subsidiaries or affiliates (a “Payment”) constitute “parachute payments” under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the “Parachute Amount”) exceeds 2.99 times the Executive’s “base amount”, as defined in Section 280G(h)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Executive shall be reduced to the terms of this Agreement or otherwise pursuant extent necessary so that the Parachute Amount is equal to or by reason of any other agreement2.99 times the Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after tax basis, that the Executive would be entitled to retain upon her receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 12 results in a reduction of the payments that would otherwise be paid to Executive except for the application of clause (a) of this Section 12, each particular entitlement of Executive shall be eliminated or reduced as follows: (i) first all cash payments, pro rata; and then (ii) all remaining benefits, pro rata. Within any of these categories, a reduction shall occur first with respect to amounts that are not deemed to constitute a “deferral of compensation” within the meaning of and subject to Code Section 409A (“Nonqualified Deferred Compensation”) and then with respect to amounts that are treated as Nonqualified Deferred Compensation, with such reduction being applied in each case to 16 (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 12 (“Overpayment”) or that additional payments which are not made by the Company pursuant to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax clause (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the a) of this Section 12 should have been made (“Excise TaxUnderpayment”), then, in . In the event that there is a final determination by the after-Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made and that repayment will eliminate any excise tax value otherwise due under Section 4999 of all Payments the Code, any such Overpayment shall be repaid by Executive to the Executive (such after-tax value to reflect Company together with interest at the deduction of the Excise Tax and all income or other taxes on such Payments) would, applicable Federal rate provided for in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditors.Section 7872(f)(2)

Excess Parachute Payments. (a) If it is determined (as hereafter provided) that any payment portion of the amounts payable to Executive under this Agreement, either alone or distribution by together with other payments which the Executive has the right to receive from the Company or any Employer 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 pursuant to or by reason of Agreement, any other agreement, policy, plan, program plans or arrangement, including without limitation any stock option, stock appreciation right agreements or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing otherwise) (a “Payment”) would be ), constitute “excess parachute payments” within the meaning of Section 280G of the Code, that are subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax and/or assessment) (such tax or taxestaxes and assessments, together with any such interest or and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), thenand, if so, then Company shall pay or provide to Executive the greatest of the following, whichever gives Executive the highest net after-tax amount (after taking into account federal, state, local and payroll taxes at Executive’s actual marginal rates and the Excise Tax): (1) all of the Payments or (2) Payments not in excess of the greatest amount of Payments that can be paid that would not result in the imposition of the excise tax under Section 4999 of the Code (the “Safe Harbor Amount”). Payments shall be made as follows: (A) if none of the Payments constitute nonqualified deferred compensation (within the meaning of Section 409A of the Code), then such reduction and/or repayment shall occur in the manner the Executive elects in writing prior to the date of Payment; or (B) if any Payment constitutes non-qualified deferred compensation or if the Executive fails to elect an order in the event that none of the afterPayments constitutes non-tax value qualified deferred compensation (within the meaning of all Section 409A of the Code), then the Payments to be reduced will be determined in a manner which maximizes the Executive (Executive’s economic position and, to the extent the economic cost is equivalent between one or more Payments, such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, Payments will be reduced in the aggregate, be less than the after-tax value inverse order of when payment would have been made to the Executive of Executive, until the Safe Harbor Amount, (a) the cash portions of the aggregate Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals equal the Safe Harbor Amount (the “Reduced Amount, ”). The Company and Executive shall cooperate with each other and use all reasonable efforts to minimize to the fullest extent possible the amount of excise tax imposed by Section 4999 of the Code (or similar tax and/or assessment). (b) if the reduction As a result of the cash portions uncertainty in the application of Section 280G of the PaymentsCode, it is possible that Payments may be made by the Company, which should not have been made (“Overpayment”), in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the Certified Public Accountants, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or Executive which said Certified Public Accountants believe has a high probability of success, determines that an Overpayment has been made, any such Overpayment shall be treated for all purposes as a loan to Executive which Executive shall repay to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no amount shall be payable under this Agreement, by Executive to zero the Company in and to the extent such payment would not be sufficient to reduce the Parachute Value of all Payments amount which is subject to the Safe Harbor Amount, then any cash portions taxation under Section 4999 of the Payments payable to Code. In the Executive under event that the Certified Public Accountants, based upon controlling precedent, determine that an Underpayment has occurred, any other agreements, policies, plans, programs or arrangements such Underpayment shall be reduced, promptly paid by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and Code (c) if the reduction of all cash portions The determination of the PaymentsExcise Tax, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount and Reduced Amount, then non-cash portions of the Payments if any, and other amounts under this subsection 16 shall be reducedmade by, in the order in which Golden Parachute Tax Solutions LLC, or if they are due no longer in business or are unable to be paidtake on this engagement, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined independent accounting firm employed by the Company and immediately prior to the Company’s outside auditorsChange of Control, or such other nationally recognized certified public accounting firm as may be designated by the Executive (“Certified Public Accountants”).

Excess Parachute Payments. If it is determined (as hereafter provideda) In the event that the Executive becomes entitled to payments or benefits under this Agreement, the Option and/or any payment other payments or distribution by the Company or any Employer 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 pursuant to or benefits by reason of a “change of control” as defined in Section 280G of the Code and regulations thereunder (collectively, the “Payments”), and any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar rightsuch Payment would constitute an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would otherwise be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local lawCode, or any interest similar federal or penalties with respect to such excise tax state law (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the an “Excise Tax”), thenas determined by an independent certified public accounting firm selected by the Company (the “Accounting Firm”), the amount of the Executive’s Payments shall be limited to the largest amount payable, if any, that would not result in the event that the after-tax value imposition of all Payments to the Executive (such after-tax value to reflect the deduction of the any Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in but only if, notwithstanding such limitation, the aggregatetotal Payments, equals net of all taxes imposed on the Safe Harbor AmountExecutive with respect thereto, and would be greater if no Excise Tax were imposed. (b) if If a reduction in the Payments is necessary, reduction shall occur in the following order: first, a reduction of cash payments not attributable to equity awards which vest on an accelerated basis; second, the cancellation of accelerated vesting of stock awards; third, the reduction of the cash portions employee benefits; and fourth, a reduction in any other “parachute payments” (as defined in Section 280G of the Payments, payable under this Agreement, Code). If acceleration of vesting of stock award compensation is to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, such acceleration of vesting shall be cancelled in the reverse order in which they are due to be paid, until of the Parachute Value date of all Payments paid to grant of the Executive, in the aggregate, equals the Safe Harbor Amount’s stock awards, and the acceleration of the vesting of full shares shall be cancelled before the acceleration of the vesting of options. (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due All determinations required to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations made under this section shall Section 7 will be determined made by the Accounting Firm. Any determination by the Accounting Firm will be binding upon the Company and the Executive. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 7 shall be borne by the Company. (d) Notwithstanding the foregoing and to the extent no stock of the Company is then readily tradable on an established securities market or otherwise, the Company shall use its reasonable good faith efforts to submit for stockholder approval any Payments that could be subject to the Excise Tax, under procedures intended to comply with the requirements of Section 280G(b)(5)(B) of the Code and Treasury Regulation Section 1.280G-1, Q&A 7 (or such replacement or successor provision thereto). The Company’s outside auditorsobligation to submit such Payments to stockholders shall be conditioned on the Executive executing a waiver of such Payments so that the stockholders’ vote will determine whether such Payments are made. The materials submitted to stockholders and the Executive’s waiver shall be in such form as the Company may prescribe. For the avoidance of doubt, any reasonable good faith effort by the Company to submit any Payments for stockholder approval pursuant to this Section 7(d) shall not require the Company to conduct any electioneering or to encourage or direct stockholders’ votes in any way.

Excess Parachute Payments. If (a) Notwithstanding anything in this Plan to the contrary, in the event it is shall be determined (as hereafter provided) that any payment payments or distribution distributions by the Company or any Employer to or for the benefit of the Executive, an Eligible Participant (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Plan or otherwise pursuant Other Arrangement, but determined without regard to or by reason of any other agreementpayments required under this Section 4.6) (collectively, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”"Payments") would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred by the Eligible Participant with respect to such excise tax (such tax or taxesexcise tax, together with any such interest or and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), thenthen the Eligible Participant shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that, after payment by the Eligible Participant of all taxes (and any interest or penalties imposed with respect to such taxes), including any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Eligible Participant retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 4.6(d), all determinations required to be made under this Section 4.6, including whether and when a Gross-Up Payment is required and the amount such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company's external auditors (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and the Eligible Participant within 15 business days of the receipt of notice from the Eligible Participant that there has been a Payment, or such earlier time as is requested by the Company. In the event that the after-tax value Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of all Payments Control, the Eligible Participant shall appoint another nationally recognized accounting firm to make the Executive determinations required hereunder (such after-tax value which accounting firm shall then be referred to reflect as the deduction "Accounting Firm" hereunder). All fees and expenses of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement Accounting Firm shall be reducedborne solely by the Company. Any Gross-Up Payment, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable as determined pursuant to this Agreement or otherwiseSection 4.6, to zero would not shall be sufficient to reduce paid by the Parachute Value of all Payments Company to the Safe Harbor Amount, then non-cash portions Eligible Participant within five days of the Payments receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by binding upon the Company and the Eligible Participant. (c) As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which should have been made by the Company will not have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 4.6(d) and the Eligible Participant thereafter is required to make a payment of any additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Eligible Participant. (d) The Eligible Participant shall notify the Company in writing of any claim by the Internal Revenue Service or any other taxing authority that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Eligible Participant knows 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. The Eligible Participant shall not pay such claim prior to the expiration of the thirty-day period following the date on which it 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 Eligible Participant in writing prior to the expiration of such period that it desires to contest such claim, the Eligible Participant 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 accepting legal representation with respect to such claim by an attorney reasonably selected by the Company’s outside auditors; (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 additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Eligible Participant harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 4.6(d), the Company 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 Eligible Participant to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and the Eligible Participant 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 Company shall determine; provided further, however, that if the Company directs the Eligible Participant to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Eligible Participant on an interest-free basis and shall indemnify and hold the Eligible Participant harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or 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 any extension of the statute of limitations relating to payment of taxes for the taxable year of the Eligible Participant with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Eligible Participant shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (e) If, after the receipt by the Eligible Participant of an amount advanced by the Company pursuant to Section 4.6(d), the Eligible Participant becomes entitled to receive any refund with respect to such claim, the Eligible Participant shall (subject to the Company's complying with the requirements of Section 4.6(d)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Eligible Participant of an amount advanced by the Company pursuant to Section 4.6(d), a determination is made that the Eligible Participant shall not be entitled to any refund with respect to such claim and the Company does not notify the Eligible Participant in writing of its intent to contest such denial of refund prior to the expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for BHI or the Company (as hereafter provided) the "Accountants"), that any payment payment, benefit or distribution by the Company Company, BHI or any Employer of their respective subsidiaries or affiliates (a "Payment") constitute "parachute payments" under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the "Parachute Amount") exceeds 2.99 times the Executive's "base amount", as defined in Section 280G(h)(3) of the Code (the "Executive Base Amount"), the amounts constituting "parachute payments" which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Executive shall be reduced to the terms of this Agreement or otherwise pursuant extent necessary so that the Parachute Amount is equal to or by reason of any other agreement2.99 times the Executive Base Amount (the "Reduced Amount"); provided that such amounts shall not be so reduced if the Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after tax basis, that the Executive would be entitled to retain upon Executive’s receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 12 results in a reduction of the payments that would otherwise be paid to Executive except for the application of clause (a) of this Section 12, within each particular entitlement of Executive shall be eliminated or reduced as follows: (i) first all cash payments, pro rata; and then (ii) all remaining benefits, pro rata. Within any of these categories, a reduction shall occur first with respect to amounts that are (c) As a result of the meaning uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 12 ("Overpayment") or that additional payments which are not made by the Company pursuant to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax clause (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”a) of this Section 12 should have been made ("Underpayment"), then, in . In the event that there is a final determination by the after-Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made and that repayment will eliminate any excise tax value otherwise due under Section 4999 of all Payments the Code, any such Overpayment shall be repaid by Executive to the Executive (such after-tax value to reflect Company together with interest at the deduction of the Excise Tax and all income or other taxes on such Payments) would, applicable Federal rate provided for in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditors.Section 7872(f)(2)

Excess Parachute Payments. (a) If there is a “Change in Control” of the Company within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), a portion of the benefits to which S▇▇▇▇▇▇▇ is entitled under this Agreement could be characterized as “excess parachute payments” within the meaning of Section 280G of the Code. The parties hereto acknowledge that the protections set forth in this Section 3.9 are important, and it is agreed that S▇▇▇▇▇▇▇ should not have to bear the full burden of the excise tax that might be levied under Section 4999 of the Code or any similar provision of federal, state of local law, in the event that any portion of the benefits payable to S▇▇▇▇▇▇▇ pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 3.9. (b) Anything in this Agreement to the contrary notwithstanding, if it shall be determined (as hereafter provided) that any payment or distribution (including income recognized by S▇▇▇▇▇▇▇ upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any Employer other Person to or for the benefit of the Executive, S▇▇▇▇▇▇▇ (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant otherwise, but determined without regard to or by reason of any other agreementadditional payments required under this Section 3.9, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor similar provision thereto) by reason of being “contingent on a change in ownership or control” of the Companyany federal, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, law or any interest or penalties are incurred by S▇▇▇▇▇▇▇ with respect to such excise tax (such tax or taxesexcise tax, together with any such interest or and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), thenthen the Company shall pay an additional payment, not to exceed the amount of S▇▇▇▇▇▇▇’▇ then current Base Salary in the aggregate (a “Gross-Up Payment”), in the event an amount such that the after-tax value after payment by S▇▇▇▇▇▇▇ of all Payments taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Executive Gross-Up Payment, S▇▇▇▇▇▇▇ retains an amount of the Gross-Up Payment equal to fifty percent (such after-tax value to reflect the deduction 50%) of the Excise Tax and all income or other taxes imposed on such the Payments) would, in . S▇▇▇▇▇▇▇ will bear the aggregate, be less than the after-tax value to the Executive cost of the Safe Harbor Amount, remaining fifty percent (a50%) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value aggregate Gross-Up Payments from the Company have reached the amount of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor AmountS▇▇▇▇▇▇▇’▇ then current Base Salary, and (b) if the reduction of the cash portions of the Paymentswill thereafter bear all additional taxes, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs interest or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and penalties. (c) if In the reduction event of any dispute as to the applicability or amount of any Gross-Up Payment, all cash portions determinations required to be made under this Section 3.9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the independent public accounting firm regularly employed by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and to S▇▇▇▇▇▇▇ within fifteen (15) business days after the receipt of notice from S▇▇▇▇▇▇▇ that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the PaymentsAccounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by S▇▇▇▇▇▇▇, payable pursuant it shall furnish S▇▇▇▇▇▇▇ with a written statement that failure to this Agreement or otherwise, to zero report the Excise Tax on S▇▇▇▇▇▇▇’▇ applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be sufficient to reduce binding on the Parachute Value Company and S▇▇▇▇▇▇▇ unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of all Payments to uncertainty in the Safe Harbor Amount, then non-cash portions application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments may not have been made by the Company that should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. If S▇▇▇▇▇▇▇ thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be reducedpromptly paid by the Company to or for the benefit of S▇▇▇▇▇▇▇, consistent with the maximum limitation stated in this Section 3.9. In the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be event it is determined by the Accounting Firm that the Gross Payments previously made by the Company and exceeded the limitations stated in this Section 3.9, upon written notice from the Company, accompanied by a copy of the Accounting Firm’s outside auditorscalculation of same, the amount of such overpayment shall be promptly paid by S▇▇▇▇▇▇▇ to the Company.

Excess Parachute Payments. If it is determined (as hereafter provided) In the event that any payment or distribution benefit received or to be received by Employee upon the Company or any Employer to or for the benefit termination of the Executivehis employment, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement by the Company, any predecessor or successor to the Company or any corporation affiliated (within the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended (the "Code")), with the Company or which becomes affiliated with the Company (collectively all such payments are hereinafter referred to as the "Total Payments") is deemed to be an "Excess Parachute Payment" (in whole or in part) to Employee within the meaning of Section 280G(b)(1) of the Code as in effect at such time, then, in addition to all other amounts to be paid to Employee by the Company hereunder, the Company shall, within 30 days of the date on which any Excess Parachute Payment is made, pay to Employee, in addition to any other payment, coverage or benefit due and owing hereunder, an amount determined by (i) multiplying the rate of excise tax then imposed by Code Section 4999 by the amount of the "Excess Parachute Payment" received by Employee (determined without regard to any payments made to Employee pursuant to or this Section 4.7) and (ii) dividing the product so obtained by reason of any other agreementthe amount obtained by subtracting (A) the aggregate local, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or state and Federal income tax rates applicable to the lapse or termination of any restriction on or the vesting or exercisability of any receipt by Employee of the foregoing "Excess Parachute Payment" (a “Payment”taking into account the deductibility for Federal income tax purposes of the payment of state and local income taxes thereon) would be subject to from (B) the amount obtained by subtracting from 1.00 the rate of excise tax then imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of Code. It is the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event 's intention that the Employee's net after-tax value position be substantially the same as it would have been had Sections 280G and 4999 not been part of all Payments the Code. For purposes of implementing this Section 4.7, (i) no portion, if any, of the Total Payments, the receipt or enjoyment of which Employee shall have effectively waived in writing prior to the Executive (such after-tax value to reflect the deduction date of payment of the Excise Tax and all income or other taxes on such Total Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amounttaken into account, and (bii) if the reduction value of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, benefit or any deferred cash payment included in the order in which they are due to be paid, until the Parachute Value of all Total Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Company’s outside auditorsCode.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for BHI or the Company (as hereafter provided) the “Accountants”), that any payment payment, benefit or distribution by the Company Company, BHI or any Employer of their respective subsidiaries or affiliates (a “Payment”) constitute “parachute payments” under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the “Parachute Amount”) exceeds 2.99 times the Executive’s “base amount”, as defined in Section 280G(h)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Executive shall be reduced to the terms of this Agreement or otherwise pursuant extent necessary so that the Parachute Amount is equal to or by reason of any other agreement2.99 times the Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after tax basis, that the Executive would be entitled to retain upon his receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 12 results in a reduction of the payments that would otherwise be paid to Executive except for the application of clause (a) of this Section 12, each particular entitlement of Executive shall be eliminated or reduced as follows: (i) first all cash payments, pro rata; and then (ii) all remaining benefits, pro rata. Within any of these categories, a reduction shall occur first with respect to amounts that are not deemed to constitute a “deferral of compensation” within the meaning of and subject to Code Section 409A (“Nonqualified Deferred Compensation”) and then with respect to amounts that are treated as Nonqualified Deferred Compensation, with such reduction being applied in each case to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 12 (“Overpayment”) or that additional payments which are not made by the Company pursuant to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax clause (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the a) of this Section 12 should have been made (“Excise TaxUnderpayment”), then, in . In the event that there is a final determination by the after-Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made and that repayment will eliminate any excise tax value otherwise due under Section 4999 of all Payments the Code, any such Overpayment shall be repaid by Executive to the Executive (such after-tax value to reflect Company together with interest at the deduction of the Excise Tax and all income or other taxes on such Payments) would, applicable Federal rate provided for in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditors.Section 7872(f)(2)

Excess Parachute Payments. (A) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, restricted stock award, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Severance Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto) by reason of being “"contingent on a change in ownership or control” " of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “"Excise Tax”"), thenthen Executive shall receive the greater of (x) the Severance Payment, in the event that the after-tax value of all Payments to the after payment by Executive (such after-tax value to reflect the deduction of the Excise Tax imposed on the Severance Payment and (y) the amount of the Severance Payment (calculated on a net after-tax basis) which could be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company under such Section (the "Capped Payment"). (B) Subject to the provisions of Section 8(d)(iii)(A) hereof, all determinations required to be made under this Section 8(d), including whether an Excise Tax is payable by Executive and the amount of such Excise Tax, 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 Executive). 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 date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Excise Tax is payable by Executive, the Company shall either (x) make payment of the Severance Payment, less all amounts withheld in respect of the Excise Tax, as required by applicable law, or (ii) reduce the Severance Payment by the amount which, based on the Accounting Firm's determination and calculations, would provide Executive with the Capped Payment, and pay to Executive such reduced amount. If the Accounting Firm determines that no Excise Tax is payable by Executive, 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 Excise Tax on his federal, state, local income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive return. All fees and expenses of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement Accounting Firm shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company in connection with the calculations required by this section. (C) The federal, state and local income or other tax returns filed by Executive (or any filing made by a consolidated tax group which includes the Company’s outside auditors) shall be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive shall make proper payment of the amount of any Excise 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 corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment.

Excess Parachute Payments. (A) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, restricted stock award, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Severance Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto) by reason of being “"contingent on a change in ownership or control” " of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “"Excise Tax”"), thenthen Executive shall receive the greater of (x) the Severance Payment, in the event that the after-tax value of all Payments to the after payment by Executive (such after-tax value to reflect the deduction of the Excise Tax imposed on the Severance Payment and (y) the amount of the Severance Payment (calculated on a net after-tax basis) which could be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company under such Section (the "Capped Payment"). (B) Subject to the provisions of Section 8(d)(iii)(A) hereof, all determinations required to be made under this Section 8(d), including whether an Excise Tax is payable by Executive and the amount of such Excise Tax, 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 Executive). 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 date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Excise Tax is payable by Executive, the Company shall either (x) make payment of the Severance Payment, less all amounts withheld in respect of the Excise Tax, as required by applicable law, or (y) reduce the Severance Payment by the amount which, based on the Accounting Firm's determination and calculations, would provide Executive with the Capped Payment, and pay to Executive such reduced amount. If the Accounting Firm determines that no Excise Tax is payable by Executive, 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 Excise Tax on his federal, state, local income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive return. All fees and expenses of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement Accounting Firm shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company in connection with the calculations required by this section. (C) The federal, state and local income or other tax returns filed by Executive (or any filing made by a consolidated tax group which includes the Company’s outside auditors) shall be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive shall make proper payment of the amount of any Excise 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 corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment.

Excess Parachute Payments. If it is determined Subject to a Release between Executive and the Company approved by the Board of Directors or the Compensation Committee of ABM Industries Incorporated, if the Severance Benefits, an equity award, and/or any other benefit provided based on an agreement between Executive and the Company would be an excess parachute payment (as hereafter provided“Total Benefits”), but for the application of this Section, then the Total Benefits will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or distribution by the Company or any Employer to or for the benefit of the Executivebenefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreementas so reduced, policyconstitutes an excess parachute payment; provided, planhowever, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of that the foregoing (a “Payment”) reduction will not be made if such reduction would be subject to result in Executive receiving an amount determined on an after-tax basis, taking into account the excise tax imposed by pursuant to Section 4999 of the Code (Code, or any successor provision thereto, any tax imposed by any comparable provision of state law and any applicable federal, state and local income and employment taxes (the “After-Tax Amount”) less than ninety percent (90%) of the After-Tax Amount of the Total Benefits without regard to this clause. Whether requested by reason of being “contingent on a change in ownership the Executive or control” of the Company, within the meaning determination of whether any reduction in Total Benefits to be provided to Executive is required pursuant this Section, and the value to be assigned to the Executive’s covenants in Section 5 hereof for purposes of determining the amount, if any, of the “excess parachute payment” under Section 280G of the Code (will be made at the expense of the Company by the Company’s independent accountants or benefits consultant. The determination of whether any successor provision theretoreduction in Severance Benefits, equity award(s) and/or any other agreement or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments otherwise is required pursuant to the Executive (such after-tax value to reflect preceding sentence will be made at the deduction expense of the Excise Tax and all income Company by independent accountants selected by Company or other taxes on such Payments) would, in the aggregate, Company’s benefits consultant. The fact that Executive’s right to Total Benefits may be less than the after-tax value to the Executive reduced by reason of the Safe Harbor Amount, (a) the cash portions limitations contained in this paragraph will not of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value itself limit or otherwise affect any other rights of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs agreement. In the event that any payment or arrangements shall be reduced, in the order in which they are due benefit intended to be paid, until the Parachute Value of all Payments paid provided is required to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable be reduced pursuant to this Agreement or otherwiseSection, Executive will be entitled to zero would designate the payments and/or benefits to be so reduced in order to give effect to this Section, provided, however, that payments that do not constitute deferred compensation within the meaning of Section 409A will be sufficient reduced first. The Company will provide Executive with all information reasonably requested by Executive to reduce permit Executive to make such designation. In the Parachute Value event that Executive fails to make such designation within ten (10) business days after receiving notice from the Company of all Payments a reduction under this Section, the Company may effect such reduction in any manner it deems appropriate. The term “excess parachute payment” as used in this paragraph means a payment that creates an obligation for Executive to the Safe Harbor Amount, then non-cash portions pay excise taxes under Section 280G of the Payments shall be reducedInternal Revenue Code of 1986, in the order in which they are due to be paidas amended, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsor any successor statute.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment payment, benefit, entitlement or distribution by the Company (or any Employer of its subsidiaries or affiliates) or, by the person(s) or entity or entities effecting the change in control or change in ownership of a substantial portion of the assets of a corporation, to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, pursuant to or by reason of any other agreement, policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing foregoing) (a “Payment”), would (i) would be subject to constitute a “parachute payment” within the excise tax imposed by meaning of Section 4999 280G of the Code (or any successor provision theretothereto or any similar statute or code), and (iii) but for this sentence, be subject to excise tax imposed by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, plans, programs programs, or arrangements shall be reduced, in the Company: Employee: reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount; provided that in all events any Payment which receives the favorable valuation under Q&A-24 (b) and (c) of Treas. Reg. §1-280G shall not be reduced before all Payments which do not receive such favorable valuation have been reduced. All calculations under this section Section shall be determined by a national accounting firm selected by the Company and (which may include the Company’s outside auditors). The Company shall pay all costs to obtain and provide such calculations to Employee and the Company and such calculations shall be provided to any Payment being paid to Employee. For purposes of this Agreement, the “Parachute Value” of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for BHI or the Company (as hereafter provided) the “Accountants”), that any payment payment, benefit or distribution by the Company Company, BHI or any Employer of their respective subsidiaries or affiliates (a “Payment”) constitute “parachute payments” under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the “Parachute Amount”) exceeds 2.99 times the Executive’s “base amount”, as defined in Section 280G(b)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Executive shall be reduced to the terms of this Agreement or otherwise pursuant extent necessary so that the Parachute Amount is equal to or by reason of any other agreement2.99 times the Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after tax basis, that the Executive would be entitled to retain upon his receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 12 results in a reduction of the payments that would otherwise be paid to Executive except for the application of clause (a) of this Section 12, within each particular entitlement of Executive shall be eliminated or reduced as follows: (i) first all cash payments, pro rata, and then (ii) all remaining benefits, pro rata. (c) As a result of the meaning uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 12 (“Overpayment”) or that additional payments which are not made by the Company pursuant to any similar tax imposed clause (a) of this Section 12 should have been made (“Underpayment”). In the event that there is a final determination by state or local lawthe Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall be repaid by Executive to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or penalties with respect a change in the provisions of the Code or regulations pursuant to which an Underpayment arises, any such excise tax (such tax Underpayment shall be promptly paid by the Company to or taxesfor the benefit of Executive, together with any such interest or penalties, are hereafter collectively referred to as at the “Excise Tax”), then, applicable Federal rate provided for in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction Section 7872(f)(2) of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsCode.

Excess Parachute Payments. (a) If there is a “Change in Control” of the Company within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), a portion of the benefits to which R▇▇▇▇ is entitled under this Agreement could be characterized as “excess parachute payments” within the meaning of Section 280G of the Code. The parties hereto acknowledge that the protections set forth in this Section 3.8 are important, and it is agreed that R▇▇▇▇ should not have to bear the full burden of the excise tax that might be levied under Section 4999 of the Code or any similar provision of federal, state of local law, in the event that any portion of the benefits payable to R▇▇▇▇ pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 3.8. (b) Anything in this Agreement to the contrary notwithstanding, if it shall be determined (as hereafter provided) that any payment or distribution (including income recognized by R▇▇▇▇ upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any Employer other Person to or for the benefit of the Executive, R▇▇▇▇ (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant otherwise, but determined without regard to or by reason of any other agreementadditional payments required under this Section 3.8, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor similar provision thereto) by reason of being “contingent on a change in ownership or control” of the Companyany federal, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, law or any interest or penalties are incurred by R▇▇▇▇ with respect to such excise tax (such tax or taxesexcise tax, together with any such interest or and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), thenthen the Company shall pay an additional payment, not to exceed the amount of R▇▇▇▇’▇ then current Base Salary in the aggregate (a “Gross-Up Payment”), in the event an amount such that the after-tax value after payment by R▇▇▇▇ of all Payments taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Executive Gross-Up Payment, R▇▇▇▇ retains an amount of the Gross-Up Payment equal to fifty percent (such after-tax value to reflect the deduction 50%) of the Excise Tax and all income or other taxes imposed on such the Payments) would, in . R▇▇▇▇ will bear the aggregate, be less than the after-tax value to the Executive cost of the Safe Harbor Amount, remaining fifty percent (a50%) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value aggregate Gross-Up Payments from the Company have reached the amount of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor AmountR▇▇▇▇’▇ then current Base Salary, and (b) if the reduction of the cash portions of the Paymentswill thereafter bear all additional taxes, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs interest or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and penalties. (c) if In the reduction event of any dispute as to the applicability or amount of any Gross-Up Payment, all cash portions determinations required to be made under this Section 3.8, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the independent public accounting firm regularly employed by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and to R▇▇▇▇ within fifteen (15) business days after the receipt of notice from R▇▇▇▇ that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the PaymentsAccounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by R▇▇▇▇, payable pursuant it shall furnish Ramey with a written statement that failure to this Agreement or otherwise, to zero report the Excise Tax on R▇▇▇▇’▇ applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be sufficient to reduce binding on the Parachute Value Company and R▇▇▇▇ unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of all Payments to uncertainty in the Safe Harbor Amount, then non-cash portions application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments may not have been made by the Company that should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. If R▇▇▇▇ thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be reducedpromptly paid by the Company to or for the benefit of R▇▇▇▇, consistent with the maximum limitation stated in this Section 3.8. In the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be event it is determined by the Accounting Firm that the Gross Payments previously made by the Company and exceeded the limitations stated in this Section 3.8, upon written notice from the Company, accompanied by a copy of the Accounting Firm’s outside auditorscalculation of same, the amount of such overpayment shall be promptly paid by R▇▇▇▇ to the Company.

Excess Parachute Payments. (a) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable (including payments and benefits pursuant to the terms this Agreement) that Executive has received in connection with an acquisition of Executive’s previous employer, or would receive pursuant to this Agreement or otherwise pursuant to or by reason of any other agreement(collectively, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “PaymentAcquisition Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, then such Acquisition Payments shall be equal to the Reduced Amount. The “Reduced Amount” shall be the largest portion of the Acquisition Payments that would result in no portion of the event Acquisition Payments being subject to the Excise Tax. If a reduction in payments or benefits constituting the Acquisition Payments is necessary so that the after-tax value of all Acquisition Payments to equal the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Reduced Amount, (aA) the cash portions Executive shall have no right to any portion of the Acquisition Payments payable to the Executive under this Agreement shall be reduced, except those included in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Reduced Amount, and (bB) if reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (1), (2), (3) or (4)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the cash portions meaning of Section 409A and then with respect to amounts that are. In the Payments, payable under this Agreement, event that acceleration of compensation from Executive’s equity awards is to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, such acceleration of vesting shall be canceled in the reverse order in which they are due of the date of grant. (b) The independent professional firm engaged by the Company for general tax audit purposes as of the day prior to the effective date of the Change of Control shall make all determinations required to be paidmade under this Section 4.7. If the firm so engaged by the Company is serving as advisor for the individual, until entity or group effecting the Parachute Value Change of Control, the Company shall appoint a nationally recognized independent professional firm to make the determinations required hereunder. The Company shall bear all Payments paid expenses with respect to the Executive, in the aggregate, equals the Safe Harbor Amount, and determinations by such independent registered public accounting firm required to be made hereunder. (c) if The firm engaged to make the reduction of all cash portions of the Paymentsdeterminations hereunder shall provide its calculations, payable pursuant to this Agreement or otherwisetogether with detailed supporting documentation, to zero would not be sufficient the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to reduce the Parachute Value of all any Acquisition Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. If the firm determines that no Excise Tax is payable with respect to any Acquisition Payments, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Acquisition Payments. Any good faith determinations of the Company’s outside auditorsfirm made hereunder shall be final, binding and conclusive upon the Company and Executive.

Excess Parachute Payments. If it is determined Subject to a Release between Executive and the Company approved by the Board of Directors or the Compensation Committee of ABM Industries Incorporated, if the Severance Benefits, an equity award, and/or any other benefit provided based on an agreement between Executive and the Company would be an excess parachute payment (as hereafter provided“Total Benefits”), but for the application of this Section, then the Total Benefits will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or distribution by the Company or any Employer to or for the benefit of the Executivebenefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreementas so reduced, policyconstitutes an excess parachute payment; provided, planhowever, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of that the foregoing (a “Payment”) reduction will not be made if such reduction would be subject to result in Executive receiving an amount determined on an after-tax basis, taking into account the excise tax imposed by pursuant to Section 4999 of the Code (Code, or any successor provision thereto, any tax imposed by any comparable provision of state law and any applicable federal, state and local income and employment taxes (the “After-Tax Amount”) less than ninety percent (90%) of the After-Tax Amount of the Total Benefits without regard to this clause. Whether requested by reason of being “contingent on a change in ownership the Executive or control” of the Company, within the meaning determination of whether any reduction Total Benefits to be provided to Executive is required pursuant this Section, and the value to be assigned to the Executive's covenants in Section 5 hereof for purposes of determining the amount, if any, of the “excess parachute payment” under Section 280G of the Code (will be made at the expense of the Company by the Company's independent accountants or benefits consultant. The determination of whether any reduction in Severance Benefits, equity award(s) and/or any other agreement or otherwise is required pursuant to the preceding sentence will be made at the expense of the Company by independent accountants selected by Company or the Company’s benefits consultant. The determination of whether any reduction in Severance Benefits, an equity award or any successor provision thereto) other agreement or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments otherwise is required pursuant to the Executive (such after-tax value to reflect preceding sentence will be made at the deduction expense of the Excise Tax and all income Company by independent accountants selected by Company or other taxes on such Payments) would, in the aggregate, Company's benefits consultant. The fact that Executive’s right to Total Benefits may be less than the after-tax value to the Executive reduced by reason of the Safe Harbor Amount, (a) the cash portions limitations contained in this paragraph will not of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value itself limit or otherwise affect any other rights of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs agreement. In the event that any payment or arrangements shall be reduced, in the order in which they are due benefit intended to be paid, until the Parachute Value of all Payments paid provided is required to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable be reduced pursuant to this Agreement or otherwiseSection, Executive will be entitled to zero would designate the payments and/or benefits to be so reduced in order to give effect to this Section, provided, however, that payments that do not constitute deferred compensation within the meaning of Section 409A will be sufficient reduced first. The Company will provide Executive with all information reasonably requested by Executive to reduce permit Executive to make such designation. In the Parachute Value event that Executive fails to make such designation within ten (10) business days after receiving notice from the Company of all Payments a reduction under this Section, the Company may affect such reduction in any manner it deems appropriate. The term “excess parachute payment” as used in this paragraph means a payment that creates an obligation for Executive to the Safe Harbor Amount, then non-cash portions pay excise taxes under Section 280G of the Payments shall be reducedInternal Revenue Code of 1986, in the order in which they are due to be paidas amended, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsor any successor statute.

Excess Parachute Payments. (a) If there is a "change of control" of the Company within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), a portion of the benefits to which ▇▇▇▇▇▇▇▇▇▇ is entitled under this Agreement could be characterized as "excess parachute payments" within the meaning of Section 280G of the Code. The parties hereto acknowledge that the protections set forth in this Section 3.10 are important, and it is agreed that ▇▇▇▇▇▇▇▇▇▇ should not have to bear the full burden of the excise tax that might be levied under Section 4999 of the Code or any similar provision of federal, state of local law, in the event that any portion of the benefits payable to ▇▇▇▇▇▇▇▇▇▇ pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 3.10. (b) Anything in this Agreement to the contrary notwithstanding, if it shall be determined (as hereafter provided) that any payment or distribution (including income recognized by ▇▇▇▇▇▇▇▇▇▇ upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any Employer other Person 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 pursuant otherwise, but determined without regard to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing additional payments required under this Section 3.10 (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Code (or any successor similar provision thereto) by reason of being “contingent on a change in ownership or control” of the Companyany federal, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, law or any interest or penalties are incurred by ▇▇▇▇▇▇▇▇▇▇ with respect to such excise tax (such tax or taxesexcise tax, together with any such interest or and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), thenthen the Company shall pay an additional payment, not to exceed the amount of ▇▇▇▇▇▇▇▇▇▇'▇ then current Base Salary in the aggregate (a "Gross-Up Payment"), in the event an amount such that the after-tax value after payment by ▇▇▇▇▇▇▇▇▇▇ of all Payments taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Executive Gross-Up Payment, ▇▇▇▇▇▇▇▇▇▇ retains an amount of the Gross-Up Payment equal to fifty percent (such after-tax value to reflect the deduction 50%) of the Excise Tax and all income or other taxes imposed on such the Payments) would, in . ▇▇▇▇▇▇▇▇▇▇ will bear the aggregate, be less than the after-tax value to the Executive cost of the Safe Harbor Amount, remaining fifty percent (a50%) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value aggregate Gross-Up Payments from the Company have reached the amount of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount▇▇▇▇▇▇▇▇▇▇'▇ then current Base Salary, and (b) if the reduction of the cash portions of the Paymentswill thereafter bear all additional taxes, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs interest or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and penalties. (c) if In the reduction event of any dispute as to the applicability or amount of any Gross-Up Payment, all cash portions determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such GrossUp Payment and the assumptions to be utilized in arriving at such determination, shall be made by the independent public accounting firm regularly employed by the Company (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and to ▇▇▇▇▇▇▇▇▇▇ within 15 business days after the receipt of notice from ▇▇▇▇▇▇▇▇▇▇ that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the PaymentsAccounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by ▇▇▇▇▇▇▇▇▇▇, payable pursuant it shall furnish ▇▇▇▇▇▇▇▇▇▇ with a written statement that failure to this Agreement or otherwise, to zero report the Excise Tax on ▇▇▇▇▇▇▇▇▇▇'▇ applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be sufficient to reduce binding on the Parachute Value Company and ▇▇▇▇▇▇▇▇▇▇ unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of all Payments to uncertainty in the Safe Harbor Amount, then non-cash portions application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments may not have been made by the Company that should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. If ▇▇▇▇▇▇▇▇▇▇ thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be reducedpromptly paid by the Company to or for the benefit of ▇▇▇▇▇▇▇▇▇▇, consistent with the maximum limitation stated in this Section 3.10. In the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be event it is determined by the Accounting Firm that the Gross Payments previously made by the Company and exceeded the limitations stated in this Section 3.10, upon written notice from the Company’s outside auditors, accompanied by a copy of the Accounting Firm's calculation of same, the amount of such overpayment shall be promptly paid by ▇▇▇▇▇▇▇▇▇▇ to the Company.

Excess Parachute Payments. (i) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveExecutive pursuant to Section 7, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangementarrangement in connection with a Change in Control, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Severance Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “Excise Tax”), thenthen the 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 interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Severance Payments. (ii) Subject to the provisions of Section 11(a)(i) hereof, all determinations required to be made under this Section 11, including whether an Excise Tax is payable by the Executive and the amount of such Excise 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 Termination 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 Excise 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 Excise 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/she has substantial authority not to report any Excise Tax on Executive’s federal, state, local income or other tax return. Any 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 Services 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 Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law 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 10 hereof and the Executive thereafter is required to make a payment of any Excise 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. (iii) The federal, state and local income or other 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 consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by the Executive. The Executive shall make proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of Executive’s federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, 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, or corresponding state or local tax return, if relevant, the Accounting Firm determines 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. (iv) 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 11(a) hereof. (v) The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Sections 11(a)(ii) and (iv) 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 Executive’s payment thereof. Notwithstanding the immediately preceding, reimbursement of fees and expenses under this Section 11(a)(v) must be made before the end of the Executive's taxable year next following the Executive’s taxable year in which such fee or expense was incurred. The amount of fees or expenses eligible for reimbursement under this Section 11(a)(v) during a year may not affect the fees or expenses eligible for reimbursement under this Section 11(a)(v) in any other taxable year. (b) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement constitutes an “excess parachute payment,” within the meaning of Section 280G(b)(1) of the Code, the Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but no later than 10 business days after the 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. 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 writing 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; (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 value basis, for and against any Excise Tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (c) The Company shall control all Payments 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 pay the tax claimed and direct the Executive to ▇▇▇ for a refund or direct the Executive to contest the claim in any permissible manner, and the 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 Company shall determine; provided, however, that if the Company pays such claim and directs the Executive to ▇▇▇ for a refund, the Company shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or other tax (including interest and penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment; and provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a corporate deduction would be disallowed pursuant to Section 280G of the Code and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the 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 (including any other tax position of the Executive unrelated to matters covered hereby). (d) If, after payment by the Company in connection with the contest of the Excise Tax claim, the Executive becomes entitled to receive any refund with respect to such claim, the 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 paid by the Company or it is otherwise determined for any reason that additional amounts could be paid to the Executive without incurring any Excise Tax, any such amount will be promptly paid by the Company to the Executive (or shall be applied to reduce any amount that Executive would otherwise be required to pay the Company). If, after payment by the Company in connection with an Excise Tax claim, a determination is made that the Executive shall not be entitled to any refund with respect to such after-tax value claim and the Company does not notify the Executive in writing of its intent to reflect contest the deduction denial of such refund prior to the expiration of 30 days after such determination, the Company shall have no claim against the Executive for the amount paid and such amount shall be deemed to be in consideration for services rendered after the date of the Excise Tax and all income or other taxes on such PaymentsTermination. (e) wouldNotwithstanding the foregoing, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, payment described in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (cSection 11(c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be is determined by the Company to be impermissible under applicable law, then no such payment shall be made, nor shall the Company direct the Executive to pay the tax claimed and ▇▇▇ for a refund. (f) Subject to Section 11(e), the CompanyCompany shall make any payment required under this Section 11 (other than payments reimbursing the Executive for professional fees and expenses already addressed in this Section 11) to the Executive as soon as practicable after any Excise Tax is paid by the Executive; provided, however, that such payments must be made before the end of the Executive’s outside auditorstaxable year next following the Executive’s taxable year in which the Executive remits such taxes. In addition, a right to a payment under this Section 11 that is incurred due to a tax audit or litigation addressing the existence or amount of a tax liability, such payment must be made by the end of the year following the year in which the taxes that are the subject of the audit or litigation are remitted, or where as a result of such audit or litigation no taxes are remitted, the end of the year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution to the litigation.

Excess Parachute Payments. (A) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, restricted stock award, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Severance Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto) by reason of being “"contingent on a change in ownership or control” " of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “"Excise Tax”"), thenthen Executive shall receive the greater of (x) the Severance Payment, in the event that the after-tax value of all Payments to the after payment by Executive (such after-tax value to reflect the deduction of the Excise Tax imposed on the Severance Payment and (y) the amount of the Severance Payment (calculated on a net after-tax basis) which could be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company under such Section (the "Capped Payment"). (B) Subject to the provisions of Section 7(d)(iii)(A) hereof, all determinations required to be made under this Section 7(d), including whether an Excise Tax is payable by Executive and the amount of such Excise Tax, 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 Executive). 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 date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Excise Tax is payable by Executive, the Company shall either (x) make payment of the Severance Payment, less all amounts withheld in respect of the Excise Tax, as required by applicable law, or (y) reduce the Severance Payment by the amount which, based on the Accounting Firm's determination and calculations, would provide Executive with the Capped Payment, and pay to Executive such reduced amount. If the Accounting Firm determines that no Excise Tax is payable by Executive, 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 Excise Tax on his federal, state, local income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive return. All fees and expenses of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement Accounting Firm shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company in connection with the calculations required by this section. (C) The federal, state and local income or other tax returns filed by Executive (or any filing made by a consolidated tax group which includes the Company’s outside auditors) shall be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive shall make proper payment of the amount of any Excise 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 corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment.

Excess Parachute Payments. If it is determined (as hereafter provided) that Notwithstanding any payment or distribution by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms provision of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program agreement or arrangement, plan to the contrary (including without limitation any stock optionlesser protection of Executive under any equity-based award agreement), stock appreciation right if any amount or similar right, benefit to be paid or the lapse provided under this Agreement or termination of any restriction on other agreement or the vesting or exercisability of any of the foregoing (a “Payment”) plan would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being an “contingent on a change in ownership or controlexcess parachute payment” of the Company, within the meaning of under Section 280G of the Code (an “Excess Parachute Payment”) (including after taking into account the value, to the maximum extent permitted by Section 280G of the Code, of the covenants herein), but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement and any other agreements and plans will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will not be made if such reduction would result in Executive receiving an amount determined on an after-tax basis, taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto) or to , any similar tax imposed by any comparable provision of state or law and any applicable federal, state and local law, or any interest or penalties with respect to such excise tax income and employment taxes (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxAfter-Tax Amount”), then, in ) that is less than 90% of the event After-Tax Amount of the payments and benefits that the after-tax value of all Payments he would have received without regard to this clause. Whether requested by the Executive (or the Company, the determination of whether any reduction in such after-tax value payments or benefits to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive provided under this Agreement shall be reducedor otherwise is required pursuant to the preceding sentence, in and the order in which they are due value to be paid, until the Parachute Value of all Payments paid assigned to the Executive’s covenants herein 11 for purposes of determining the amount, in the aggregateif any, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions Excess Parachute Payment will be made at the expense of the Payments, payable under this Agreement, Company by the Company’s independent accountants or benefits consultant. The fact that the Executive’s right to zero would not payments or benefits may be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions reduced by reason of the Payments payable to limitations contained in this Section will not of itself limit or otherwise affect any other rights of the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, any other agreement or plan. In the event that any payment or benefit intended to zero would not be sufficient provided is required to reduce the Parachute Value of all Payments be reduced pursuant to the Safe Harbor Amountthis Section, then non-cash portions the Company shall in good faith determine the appropriate treatment of payments or benefits, consistent with the Payments shall be reduced, in requirements of Section 409A that produces the order in which they are due to be paid, until the Parachute Value of all Payments paid to most advantageous economic outcome for the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section and its determination shall be determined final and binding on the Executive. The Company will provide the Executive with all information reasonably required or requested by the Company and Executive to demonstrate to the Company’s outside auditorsExecutive that it has complied with the immediately preceding sentence.

Excess Parachute Payments. If it is determined [1] In the event that any amount or benefit paid or distributed to M▇. ▇▇▇▇▇▇▇ under this Agreement, taken together with any amounts or benefits otherwise paid or distributed to M▇. ▇▇▇▇▇▇▇ by the Corporation or any affiliated company (collectively, the “Covered Payments”), are or become subject to the tax (“Excise Tax”) imposed under Code §4999, or any similar tax that may hereafter be imposed, the Corporation will pay to M▇. ▇▇▇▇▇▇▇ at the time specified in this Section 5.06 an additional amount (“Excise Tax Reimbursement”) so that the net amount retained by M▇. ▇▇▇▇▇▇▇ with respect to the Covered Payments, after deduction of any Excise Tax on the Covered Payments and any Federal, state and local income or employment tax and Excise Tax on the Excise Tax Reimbursement provided for by this Section 5.06, but before deduction for any Federal, state or local income or employment tax withholding on the Covered Payments, will be equal to the amount of the Covered Payments. [2] For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of the Excise Tax: [a] Covered Payments will be treated as “parachute payments” within the meaning of Code §280G, and all “parachute payments” in excess of the “base amount” (as hereafter provideddefined under Code §280G(b)(3)) will be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of the Corporation’s independent certified public accountants appointed before the date upon which the change in control (as defined in Code §280G) became effective or tax counsel selected by those accountants (the “Accountants”), the Corporation has a reasonable basis to conclude that Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Code §280G(b)(4)(B)) in excess of the “base amount,” or “parachute payments” are otherwise not subject to the Excise Tax; and [b] The value of any non-cash benefits or any deferred payment or distribution benefit will be determined by the Company or any Employer Accountants in accordance with the principles of Code §280G. [3] For purposes of determining the amount of the Excise Tax Reimbursement, M▇. ▇▇▇▇▇▇▇ will be deemed to or pay: [a] Federal income taxes at the highest applicable marginal rate of Federal income taxation for the benefit calendar year in which the Excise Tax Reimbursement is to be made net of the Executive, whether maximum reduction in Federal income taxes which could be obtained from the deduction of any state or local taxes if paid in that year and calculated as provided in Section 5.06[3][b]; and [b] Any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Excise Tax Reimbursement is to be made. [4] If the Excise Tax is subsequently determined by the Accountants or payable or distributed or distributable pursuant to any proceeding or negotiations with the terms Internal Revenue Service (“IRS”) to be less than the amount taken into account in calculating the Excise Tax Reimbursement made, M▇. ▇▇▇▇▇▇▇ will repay to the Corporation, at the time that the amount of this Agreement the Excise Tax is finally determined, the portion of the prior Excise Tax Reimbursement that would not have been paid if the proper amount of the Excise Tax had been applied in initially calculating the Excise Tax Reimbursement, plus interest on the amount of that repayment at the rate provided in Code §1274(b)(2)(B). However, any portion of the Excise Tax Reimbursement to be refunded to the Corporation that has been paid to any Federal, state or otherwise local tax authority, will not be required to be repaid until it has actually been credited or refunded to M▇. ▇▇▇▇▇▇▇, and interest payable to the Corporation will not exceed interest received or credited to M▇. ▇▇▇▇▇▇▇ by the tax authority for the period it held that amount. M▇. ▇▇▇▇▇▇▇ and the Corporation will mutually agree upon the course of action to be pursued (and the method of allocating the expenses of that action) if M▇. ▇▇▇▇▇▇▇’▇ good faith claim for refund or credit is denied. [5] If the Excise Tax is later determined by the Accountants or pursuant to any proceeding or negotiations with the IRS to exceed the amount taken into account at the time the Excise Tax Reimbursement is made (including by reason of any other agreement, policy, plan, program payment the existence or arrangement, including without limitation any stock option, stock appreciation right or similar right, or amount of which cannot be determined at the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction time of the Excise Tax and all income Reimbursement), the Corporation will make an additional Excise Tax Reimbursement in respect of that excess (plus any interest or other taxes on such Paymentspenalty payable with respect to that excess) would, at the time that the amount of that excess is finally determined. [6] The Excise Tax Reimbursement described in Section 5.06[1] will be paid to M▇. ▇▇▇▇▇▇▇ not later than ten business days following the aggregate, be less than the after-tax value to the Executive payment of the Safe Harbor Amount, (a) Covered Payments. If the cash portions amount of the Excise Tax Reimbursement cannot be finally determined on or before the date the Covered Payments payable are due, the Corporation will pay to M▇. ▇▇▇▇▇▇▇ the Executive under this Agreement shall be reduced, in Excise Tax Reimbursement within ten days after the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction amount of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be Excise Tax Reimbursement is finally determined by the Company and the Company’s outside auditorsAccountants.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” effective control of the Company or of a substantial portion of the assets of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) ), or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “"Excise Tax”"), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee's "base amount" within the meaning of Section 280G(b)(3) of the Code (the "Safe Harbor Amount"), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, plans, programs programs, or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-non- cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount. All calculations under this section Section shall be determined by a national accounting firm selected by the Company (which may include the Company's outside auditors). The Company shall pay all costs to obtain and provide such calculations to Employee and the Company’s outside auditors. For purposes of this Agreement, the "Parachute Value" of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. (i) If it is determined that any amount, right or benefit paid or payable (as hereafter or otherwise provided or to be provided) that any payment or distribution to the Executive by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of its affiliates under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangementarrangement under which Executive participates or is a party, including without limitation any stock optionother than amounts payable under this Section 6(d) (collectively, stock appreciation right or similar rightthe “Payments”), or would constitute an “excess parachute payment” within the lapse or termination meaning of any restriction on or the vesting or exercisability of any Section 280G of the foregoing (a “Payment”) would be Code, subject to the excise tax imposed by Section 4999 of the Code Code, as amended from time to time (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, and the present value of such Payments (calculated in a manner consistent with that set forth in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction applicable regulations promulgated under Section 280G of the Excise Tax and all income Code) is equal to or other taxes on such Payments) would, in the aggregate, be less than $50,000 greater than the after-tax value to threshold at which such amount becomes an “excess parachute payment,” then the Executive of the Safe Harbor Amount, (a) the cash portions amount of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid reduced (a “Reduction”) to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction extent necessary so that no portion of the cash portions of the Payments, such Payments payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements is more than $50,000 greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be reducedentitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, in after payment by the order in which they are due Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment (and any interest and penalties imposed with respect thereto), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax (including any interest and penalties imposed with respect thereto) imposed upon the Payments. (iii) All determinations required to be paidmade under this Section 6(d), until including whether and when a Gross-Up Payment or a Reduction is required, the Parachute Value amount of all Payments paid such Gross-Up Payment or Reduction and the assumptions to the Executivebe utilized in arriving at such determination, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reducedmade by an independent, in the order in which they are due nationally recognized accounting firm mutually acceptable to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 6(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 6(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s outside auditorsdetermination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment.

Excess Parachute Payments. If it is determined (as hereafter provideda) Notwithstanding any other provision of this Agreement, in the event that the amount of payments or other benefits payable to the Executive under this Agreement (including, without limitation, the acceleration of any payment or distribution the accelerated vesting of any payment or other benefit), together with any payments, awards or benefits payable under any other plan, program, arrangement or agreement maintained by the Company or any Employer to or for the benefit one of the Executiveits affiliates, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing would constitute an “excess parachute payment” (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”Code), then, in the event that payments under Section 5.02 of this Agreement shall be reduced (by the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Paymentsminimum possible amounts) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments until no amount payable to the Executive under this Agreement constitutes an “excess parachute payment” (within the meaning of Section 280G of the Code); provided, however, that no such reduction shall be reducedmade if the net after-tax payment (after taking into account federal, in state, local or other income, employment and excise taxes) to which the order in which they are due to Executive would otherwise be paidentitled without such reduction would be greater than the net after-tax payment (after taking into account federal, until the Parachute Value of all Payments paid state, local or other income, employment and excise taxes) to the Executive, in Executive resulting from the aggregate, equals the Safe Harbor Amount, and receipt of such payments with such reduction. (b) if All determinations required to be made under this Section 12.15, including whether a payment would result in an “excess parachute payment” and the reduction assumptions to be utilized in arriving at such determinations, shall be made by an accounting firm designated by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive as requested by the Company or the Executive. All fees and expenses of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements Accounting Firm shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined borne solely by the Company and shall be paid by the Company’s outside auditors. Absent manifest error, all determinations made by the Accounting Firm under this Section 12.15 shall be final and binding upon the Company and the Executive. 10. All other provisions of the Agreement shall remain in full force and effect. This amendment shall be governed by and construed in accordance with the laws of Bermuda, without giving effect to principles of conflict of laws, and may be executed in two or more counterparts, each of which shall constitute one and the same instrument.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” effective control of the Company or of a substantial portion of the assets of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) ), or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, plans, programs programs, or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-non- cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount. All calculations under this section Section shall be determined by a national accounting firm selected by the Company and (which may include the Company’s outside auditors). The Company shall pay all costs to obtain and provide such calculations to Employee and the Company. For purposes of this Agreement, the “Parachute Value” of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment payments or distribution benefits received or to be received by the Company or any Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable Employee pursuant to the terms of this Agreement in connection with or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or controlcontrol are deemed to be an “excess parachute payment” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise TaxExcess Parachute Payment”), then, at the Company’s election, such payments under this Agreement shall either be paid in full or reduced to the extent necessary to avoid being considered an Excess Parachute Payment, based upon the Company’s determination, in its sole discretion, as to which alternative results in the better tax consequences for the Employee. Notwithstanding any other provision of this Agreement to the contrary, if any payments or benefits provided or to be provided to or for the benefit of Employee (or Employee’s beneficiary, legal representatives or estate, as the case may be) by the Company (or any successors thereto) (the “Payments”) that, but for this Section 5, would be considered Excess Parachute Payments, then such Payments shall be limited to the greatest amount which may be paid or provided to or in respect of under Section 280G of the Code without causing the imposition of an excise tax on Employee under Section 4999 of the Code (or any successor provision), but only if, by reason of such reduction, the net after-tax benefit to Employee of such reduced Payments shall exceed the net after-tax benefit of the Payments if such reduction were not made. The determination of whether any of the Payments would be considered Excess Parachute Payments and the calculation of all the amounts referred to in this Section 5, including the relative net after-tax benefits (which shall take into account, without limitation, all applicable federal, state and local employment, income and excise taxes), shall be made by a nationally or regionally recognized accounting firm selected by the Company (the “Accounting Firm”). The Company and Employee agree to cooperate generally and in good faith regarding such determination. Any final determination by the Accounting Firm shall be binding upon the Company and Employee. In the event that the after-tax value of all Payments to or in respect of Employee are to be reduced in accordance with this Section 5, the Executive reductions shall be made in the following order: (such after-tax value i) any Payments that became fully vested prior to reflect the deduction Change in Control triggering application of this Section 5 and that pursuant to paragraph (b) of Treas. Reg. §1.280G-1, Q/A 24 are treated as Excess Parachute Payments solely by reason of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive acceleration of the Safe Harbor Amount, (a) the cash portions their originally scheduled dates of the Payments payable to the Executive under this Agreement payment shall be reduced, in by cancellation of the order in which they are due to be paid, until the Parachute Value acceleration of all Payments paid their dates of payment to the Executiveextent that would not result in Employee being subject to a tax under Section 409A of the Code; (ii) any severance payments or benefits, performance-based cash or performance-based equity incentive awards, or other Payments, in all cases the aggregatefull amounts of which are treated as contingent on the triggering Change in Control under Section 280G of the Code pursuant to paragraph (a) of Treas. Reg. §1.280G-1, equals Q/A 24, shall be reduced to the Safe Harbor Amountextent that such reduction would not result in Employee being subject to a tax under Section 409A of the Code; (iii) any equity incentive awards, or cash nonqualified deferred compensation amounts, that vest solely based on Employee’s continued service with the Company, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, that pursuant to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and paragraph (c) if of Treas. Reg. §1.280G-1, Q/A 24 are treated as contingent on the reduction of all cash portions triggering Change in Control event under Section 280G of the Payments, payable pursuant to this Agreement or otherwiseCode because they become vested as a result thereof, to zero the extent that such reduction would not be sufficient result in Employee being subject to reduce a tax under Section 409A of the Parachute Value of all Payments Code; and (iv) reduction in any other payments or benefits to the Safe Harbor Amount, then non-cash portions extent necessary but in a manner that would not result in Employee being subject to a tax under Section 409A of the Code. Within each such category, the Payments that will result in the greatest present value reduction in the Payments with the least reduction in economic value to Employee shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsreduced first.

Excess Parachute Payments. If (a) In the event that it is determined shall be determined, based upon the advice of the independent public accountants for the Company (as hereafter provided) the “Accountants”), that any payment payments, benefits or distribution distributions by the Company or any Employer of its Subsidiaries, under this Agreement or otherwise (a “Payment”), constitute “parachute payments” under Section 280G(b)(2) of the Code, as amended, then, if the aggregate present value of all such Payments (collectively, the “Parachute Amount”) exceeds 2.99 times Executive’s “base amount”, as defined in Section 2800(b)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of provided under this Agreement or otherwise pursuant otherwise, shall be reduced to or by reason of any other agreementthe extent necessary so that the Parachute Amount is equal to 2.99 times Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if Executive determines, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or based upon the lapse or termination of any restriction on or the vesting or exercisability of any advice of the foregoing (a “Payment”) Accountants, that without such reduction Executive would be subject entitled to the receive and retain, on a net after-tax basis (including, without limitation, any excise tax imposed by taxes payable under Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent Code), an amount which is greater than the amount, on a change in ownership or control” net after-tax basis, that Executive would be entitled to retain upon his receipt of the CompanyReduced Amount. (b) If the determination made pursuant to clause (a) of this Section 4.8 results in a reduction of the Payments, within such Payments shall be reduced in the meaning order that would provide Executive with the largest amount of after-tax proceeds (with such order determined by the Accountants in a manner that is both consistent with, and avoids imposition of excise taxes under, Code Sections 280G and 409A). Executive shall at any time have the unilateral right to forfeit any equity award in whole or in part, except to the extent such forfeiture would result in an impermissible substitution under Code Section 409A. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made under clause (or any successor provision theretoa) of this Section 4.8 (“Overpayment”) or that additional payments which are not made by the Company pursuant to any similar tax imposed clause (a) of this Section 4.8 should have been made (“Underpayment”). In the event that there is a final determination by state or local lawthe Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall be repaid by Executive to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or penalties with respect a change in the provisions of the Code or regulations pursuant to which an Underpayment arises, any such excise tax (such tax Underpayment shall be promptly paid by the Company to or taxesfor the benefit of Executive, together with any such interest or penalties, are hereafter collectively referred to as at the “Excise Tax”), then, applicable Federal rate provided for in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the deduction Section 7872(f)(2) of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company and the Company’s outside auditorsCode.

Excess Parachute Payments. (A) If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, restricted stock award, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Severance Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto) by reason of being “"contingent on a change in ownership or control” " of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or and penalties, are hereafter collectively referred to as the “"Excise Tax”"), thenthen Executive shall receive the greater of (x) the Severance Payment, in the event that the after-tax value of all Payments to the after payment by Executive (such after-tax value to reflect the deduction of the Excise Tax imposed on the Severance Payment and (y) the amount of the Severance Payment (calculated on a net after-tax basis) which could be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company under such Section (the "Capped Payment"); provided, however, that if the amount in subsection (x) herein exceeds the amount determined under subsection (y) herein by at least 125% of such amount in subsection (y), the Company shall make an additional payment (the "Gross-Up Payment") to Executive such that, after payment of all Excise Taxes and any other taxes payable in respect of such Gross-Up Payment, Executive shall retain the same amount as if no Excise Tax had been imposed. (B) Subject to the provisions of Section 8(d)(iii)(A) hereof, all determinations required to be made under this Section 8(d), including whether an Excise Tax is payable by Executive and the amount of such Excise Tax, 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 Executive). 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 date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Excise Tax is payable by Executive, the Company shall either (x) make payment of the Severance Payment, less all amounts withheld in respect of the Excise Tax, as required by applicable law, (or, if applicable the Gross-Up Payment) or (y) reduce the Severance Payment by the amount which, based on the Accounting Firm's determination and calculations, would provide Executive with the Capped Payment, and pay to Executive such reduced amount. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall, at the same time as it makes such determination, furnish Executive with an opinion that she has substantial authority not to report any Excise Tax on her federal, state, local income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive return. All fees and expenses of the Safe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement Accounting Firm shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by the Company in connection with the calculations required by this section. (C) The federal, state and local income or other tax returns filed by Executive (or any filing made by a consolidated tax group which includes the Company’s outside auditors) shall be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive shall make proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of her federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment.

Excess Parachute Payments. If it is determined (as hereafter provided) that any payment or distribution by the Company or any Employer to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program program, or arrangement, including without limitation any stock option, stock appreciation right right, or similar right, or the lapse or termination of any restriction on or the vesting Company: HW Employee: NM or exercisability of any of the foregoing (a “Payment”) ), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” effective control of the Company or of a substantial portion of the assets of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) ), or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive Employee (such after-tax value to reflect the deduction of reduction for the Excise Tax and all income or federal, state, and local income, employment, and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive Employee (reflecting a reduction for all such taxes in a like manner) of the amount that is 2.99 times Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), (a) the cash portions of the Payments payable to the Executive Employee under this Agreement shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive Employee under any other agreements, policies, plans, programs programs, or arrangements shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paidpaid commencing with the latest such payment, until the Parachute Value of all Payments paid to the ExecutiveEmployee, in the aggregate, equals the Safe Harbor Amount. All calculations under this section Section shall be determined by a national accounting firm selected by the Company and (which may include the Company’s outside auditors). The Company shall pay all costs to obtain and provide such calculations to Employee and the Company. For purposes of this Agreement, the “Parachute Value” of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Excess Parachute Payments. (a) If there is a "change in control" of the Company within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), a portion of the benefits to which ▇▇▇▇▇▇ is entitled under this Agreement could be characterized as "excess parachute payments" within the meaning of Section 280G of the Code. The parties hereto acknowledge that the protections set forth in this Section 3.9 are important, and it is agreed that ▇▇▇▇▇▇ should not have to bear the full burden of the excise tax that might be levied under Section 4999 of the Code or any similar provision of federal, state of local law, in the event that any portion of the benefits payable to ▇▇▇▇▇▇ pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 3.9. (b) Anything in this Agreement to the contrary notwithstanding, if it shall be determined (as hereafter provided) that any payment or distribution (including income recognized by ▇▇▇▇▇▇ upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any Employer other Person 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 pursuant otherwise, but determined without regard to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing additional payments required under this Section 3.9 (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Code (or any successor similar provision thereto) by reason of being “contingent on a change in ownership or control” of the Companyany federal, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, law or any interest or penalties are incurred by ▇▇▇▇▇▇ with respect to such excise tax (such tax or taxesexcise tax, together with any such interest or and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), thenthen the Company shall pay an additional payment, not to exceed the amount of ▇▇▇▇▇▇'▇ then current Base Salary in the aggregate (a "Gross-Up Payment"), in the event an amount such that the after-tax value after payment by ▇▇▇▇▇▇ of all Payments taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Executive Gross-Up Payment, ▇▇▇▇▇▇ retains an amount of the Gross-Up Payment equal to fifty percent (such after-tax value to reflect the deduction 50%) of the Excise Tax and all income or other taxes imposed on such the Payments) would, in . ▇▇▇▇▇▇ will bear the aggregate, be less than the after-tax value to the Executive cost of the Safe Harbor Amount, remaining fifty percent (a50%) the cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value aggregate Gross-Up Payments from the Company have reached the amount of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount▇▇▇▇▇▇'▇ then current Base Salary, and (b) if the reduction of the cash portions of the Paymentswill thereafter bear all additional taxes, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other agreements, policies, plans, programs interest or arrangements shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and penalties. (c) if In the reduction event of any dispute as to the applicability or amount of any Gross-Up Payment, all cash portions determinations required to be made under this Section 3.9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the independent public accounting firm regularly employed by the Company (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and to ▇▇▇▇▇▇ within fifteen (15) business days after the receipt of notice from ▇▇▇▇▇▇ that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the PaymentsAccounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by ▇▇▇▇▇▇, payable pursuant it shall furnish ▇▇▇▇▇▇ with a written statement that failure to this Agreement or otherwise, to zero report the Excise Tax on ▇▇▇▇▇▇'▇ applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be sufficient to reduce binding on the Parachute Value Company and ▇▇▇▇▇▇ unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of all Payments to uncertainty in the Safe Harbor Amount, then non-cash portions application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments may not have been made by the Company that should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. If ▇▇▇▇▇▇ thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be reducedpromptly paid by the Company to or for the benefit of ▇▇▇▇▇▇, consistent with the maximum limitation stated in this Section 3.9. In the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be event it is determined by the Accounting Firm that the Gross Payments previously made by the Company and exceeded the limitations stated in this Section 3.9, upon written notice from the Company’s outside auditors, accompanied by a copy of the Accounting Firm's calculation of same, the amount of such overpayment shall be promptly paid by ▇▇▇▇▇▇ to the Company.