Common use of Excise Taxes Clause in Contracts

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee Executive or for the EmployeeExecutive's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee Executive may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee Executive does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee Executive shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee Executive shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee Executive shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided Anything in this Agreement to the Employee contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment, benefit, vesting or distribution to or for the Employee's benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof otherwise) (an "Employment a “Payment" and, collectively, the "Employment Payments"”) would but for this Section 20 be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code" and such tax”), or any comparable successor provisions (the "“Excise Tax"”), then the Payments shall be either (i) provided to Employee in full, or (ii) provided to Employee as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Employee on an after-tax basis, of the greatest amount of Payments, notwithstanding that all or some portion of such Payments may elect for be subject to the Excise Tax. Any determination required under this Section 20 shall be made in writing in good faith by the Company's independent certified public accountants, appointed prior to any change in ownership (as defined under Code Section 280G(b)(2), and/or tax counsel selected by such Employment Payments to be reduced to one dollar less than accountants (the amount that would constitute a "parachute payment" under section “Accounting Firm”) in accordance with the principles of Section 280G of the Code (Code. In the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee does not elect to have Employment event of a reduction of Payments reduced to the Scaled Back Amounthereunder, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priorityas follows: (i) first from cash compensationpayments which are included in full as parachute payments, (ii) next second from equity compensationawards which are included in full as parachute payments, then (iii) pro-rated among all remaining Employment third from cash payments which are partially included as parachute payments, and (iv) fourth from equity awards that are partially included as parachute payments. In applying these principles, any reduction or elimination of the Payments shall be made in a manner consistent with the requirements of Code Section 409A and benefits. Within each where two economically equivalent amounts are subject to reduction but payable at different times, such priority category, Employment Payments amounts shall be reduced on a last pro rata basis but not below zero. For purposes of making the calculations required by this Section 20, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section 20. All fees and expenses of the Accounting Firm shall be borne solely by the Company. If, notwithstanding any reduction described in this Section 20, the Internal Revenue Service (the “IRS”) determines that Employee is liable for the Excise Tax as a result of the receipt of the Payments as described above, then Employee shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Employee challenges the final IRS determination, a final judicial determination, a portion of the Payments equal to the “Repayment Amount.” The Repayment Amount with respect to the Payments shall be the smallest such amount, if any, as shall be required to be paidpaid to the Company so that Employee's net after-tax proceeds with respect to the Payments (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the Payments shall be zero if a Repayment Amount of more than zero would not result in Employee’s net after-tax proceeds with respect to the Payments being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, first reduced basis; provided that Employee shall pay the Excise Tax. Notwithstanding any other provision of this Section 20, if (i) there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments as described in this Section 20, (ii) the IRS later determines that Employee is liable for the Excise Tax, the payment of which would result in the maximization of Employee’s net after-tax proceeds (calculated as if Employee’s Payments had not previously been reduced), and (iii) Employee pays the Excise Tax, then the Company shall pay to Employee those Payments which were reduced pursuant to this subsection as soon as administratively possible after Employee pays the Excise Tax so that Employee’s net after-tax proceeds with the least reduction in economic value provided respect to the Payments are maximized. For the avoidance of doubt, Employee acknowledges she is solely responsible for the payment of any Excise Tax and that the Company will not reimburse or otherwise indemnify her for such amount. Any reimbursements or repayments provided under this subsection shall be made strictly in accordance with Section 409A of the Code, including Treasury Regulation 1.409A-3(i)(1)(v). Notwithstanding anything in this Agreement to the contrary, if any payments or benefits due to Employee hereunder would cause the application of an accelerated or additional tax under Section 409A of the Code (“Section 409A”), such payments or benefits shall be restructured in a manner which does not cause such an accelerated or additional tax. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement during the six-month period immediately following Employee’s separation from service shall instead be paid on the first (1st) business day after the date that is six (6) months following Employee’s date of termination (or death, if earlier). In the event that Employee receives reduced payments and benefits as a result of the application of this paragraph, reduction shall be made from payments and benefits which are determined not to be nonqualified deferred compensation for purposes of Section 409A of the Code first, and then shall be made (to the extent necessary) out of payments and benefits which are subject to Section 409A of the Code and which are due at the latest future date, to the extent such reduction would not trigger adverse tax consequences under Section 409A of the Code.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Code Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then then, the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Code Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement agreement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated rata among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.. Notwithstanding the order of priority of reduction set forth above, the Employee may include in the Employee’s election for a Scaled Back Amount a change to the order of such Payment reduction. The Company shall follow such revised reduction order, if and only if, the Company, in its sole discretion, determines such change does not violate the provisions of Code Section 409A.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee Executive or for the EmployeeExecutive's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee Executive may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee Executive does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee Executive shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee Executive shall not be entitled to a gross-up gross‑up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated pro‑rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee Executive shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section Section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to Company within thirty (30) days after the CompanyDate of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If (i) In the event that any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of amounts payable under this Agreement or otherwise in connection withto the Employee would (1) constitute “parachute payments” within the meaning of Section 280G of the Code or any comparable successor provision and (2) but for this Section 25(b), or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended or any comparable successor provision (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided amounts payable to the Employee shall be either (y) provided to the Employee in full or (z) provided to the Employee to the maximum extent that would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the Employee’s receipt, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 25(b) shall be made in writing in good faith by the Employer’s independent accounting firm (the “Independent Accountants”). In the event of a reduction in benefits hereunder, the reduction of the total payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the Code: (1) any cash severance payments subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (2) any cash severance payments not subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (3) any acceleration of vesting of any equity subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest; and (4) any acceleration of vesting of any equity not subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest. For purposes of making the calculations required by this Section 25(b), the Independent Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of the Code and other applicable legal authority. The Employer and the Employee shall furnish to the Independent Accountants such information and documents as the Independent Accountants may reasonably request in order to make a determination under this Section 25(b). The Employer shall bear all costs that the Independent Accountants may reasonably incur in connection with any calculations contemplated by this Section 25(b). (ii) If notwithstanding any reductions described in this Section 25(b) the Internal Revenue Service (the “IRS”) determines that the Employee is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then the Employee shall be obligated to pay back to the Employer, within 30 days after a final IRS determination or, in the event that the Employee challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the Repayment Amount. The “Repayment Amount,” with respect to the payment of benefits, shall be the smallest such amount, if any, that is required to be paid to the Employer so that the Employee’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) are maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in the Employee’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this Section 25(b), the Employee shall pay the Excise Tax. (iii) Notwithstanding any other provision of this Section 25(b), if (1) there is a reduction in the payment of benefits as described in this Section 25(b), (2) the IRS later determines that the Employee is liable for the Excise Tax, the payment of which would result in the maximization of the Employee’s net after-tax proceeds (calculated as if the Employee’s benefits had not previously been reduced), and (3) the Employee pays the Excise Tax, then the Employer shall pay to the Employee those benefits which were reduced firstpursuant to this Section 25(b) as soon as administratively possible after the Employee pays the Excise Tax, so that the Employee’s net after-tax proceeds with respect to the payment of benefits are maximized.

Excise Taxes. Section 10 of the Agreement is replaced in its entirety with the following: “Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated rata among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.”

Excise Taxes. If (i) In the event that any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of amounts payable under this Agreement or otherwise in connection withto the Employee would (1) constitute “parachute payments” within the meaning of Section 280G of the Code or any comparable successor provision and (2) but for this Section 25(b), or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended or any comparable successor provision (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided amounts payable to the Employee shall be either (y) provided to the Employee in full or (z) provided to the Employee to the maximum extent that would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the Employee’s receipt, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Bank and the Employee otherwise agree in writing, any determination required under this Section 25(b) shall be made in writing in good faith by the Bank’s independent accounting firm (the “Independent Accountants”). In the event of a reduction in benefits hereunder, the reduction of the total payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the Code: (1) any cash severance payments subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (2) any cash severance payments not subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (3) any acceleration of vesting of any equity subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest; and (4) any acceleration of vesting of any equity not subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest. For purposes of making the calculations required by this Section 25(b), the Independent Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of the Code and other applicable legal authority. The Bank and the Employee shall furnish to the Independent Accountants such information and documents as the Independent Accountants may reasonably request in order to make a determination under this Section 25(b). The Bank shall bear all costs that the Independent Accountants may reasonably incur in connection with any calculations contemplated by this Section 25(b). (ii) If notwithstanding any reductions described in this Section 25(b) the Internal Revenue Service (the “IRS”) determines that the Employee is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then the Employee shall be obligated to pay back to the Bank, within 30 days after a final IRS determination or, in the event that the Employee challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the Repayment Amount. The “Repayment Amount,” with respect to the payment of benefits, shall be the smallest such amount, if any, that is required to be paid to the Bank so that the Employee’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) are maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in the Employee’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this Section 25(b), the Employee shall pay the Excise Tax. (iii) Notwithstanding any other provision of this Section 25(b), if (1) there is a reduction in the payment of benefits as described in this Section 25(b), (2) the IRS later determines that the Employee is liable for the Excise Tax, the payment of which would result in the maximization of the Employee’s net after-tax proceeds (calculated as if the Employee’s benefits had not previously been reduced), and (3) the Employee pays the Excise Tax, then the Bank shall pay to the Employee those benefits which were reduced firstpursuant to this Section 25(b) as soon as administratively possible after the Employee pays the Excise Tax, so that the Employee’s net after-tax proceeds with respect to the payment of benefits are maximized.

Excise Taxes. If Notwithstanding anything herein to the contrary, in the event that any payments or benefits paid or provided payable hereunder or otherwise, including, but not limited to, under the Original Agreement, to be paid or provided to Employee (the Employee or “Payments”) would (a) constitute “parachute payments” within the meaning of Section 280G of the Code, and (b) but for the Employee's benefit pursuant to the terms of this Agreement or otherwise in connection withsentence, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section 280G of the Code (the "Scaled Back Amount"“Excise Tax”). Any , then such election must Payments will be in writing and delivered reduced to be equal to the Company. If the Employee does not elect to have Employment Payments reduced Reduced Amount (as defined below) if and to the Scaled Back Amountextent that a reduction in the Payments would result in Employee retaining a larger amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments on an after-tax basis (taking into account federal, state and local income and employment taxes and the Excise Tax), than if Employee shall not received the entire amount of such Payments in accordance with their existing terms. The “Reduced Amount” will be entitled the largest portion of the Payments that would result in no portion of the Payments being subject to a gross-up payment under this Agreement or any other arrangement for such the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Employment Payments are Payment equals the Reduced Amount, reduction shall occur in a manner necessary to be reducedprovide Employee with the greatest economic benefit. If more than one manner of reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, they the payments and benefits shall be reduced pro rata. Employee may not exercise any discretion with respect to the ordering of any reductions of payments or benefits under this Clause 12. Unless the Parties otherwise agree in the following order of priority: (i) first from cash compensationwriting, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments any determination required under this Clause 12 shall be reduced on a last to made in writing by Employer’s or an Affiliate’s independent public accountants (the “Accountants”), whose determination shall be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any conclusive and binding upon Employer and Employee for all purposes. For purposes of making the foregoing categories are to be reduced firstcalculations required by this Clause 12, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided Accountants may make reasonable assumptions and approximations concerning applicable taxes. The Parties shall furnish to the Employee Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Clause 12. Employer shall be reduced firstbear all costs incurred for and by the Accountants in connection with any calculations or determinations contemplated by this Clause 12.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to Company within thirty (30) days after the CompanyDate of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section Section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated rata among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its respective subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may may, at his discretion, elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. Section 9 of the Agreement is replaced in its entirety with the following: “Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated rata among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.”

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up gross‑up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated pro‑rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section Section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, compensation described in Section 9(a)(iii); (ii) next from cash compensation described in Section 9(a)(ii); (iii) cash compensation described in Section 9(a)(v); (ii) equity compensationcompensation described in Section 9(a)(iv) (first any equity compensation that constitutes deferred compensation subject to Section 409A and then equity compensation that is not subject to Section 409A), and then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Code Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then then, the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Code Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement agreement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated rata among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first. Notwithstanding the order of priority of reduction set forth above, the Employee may include in the Employee’s election for a Scaled Back Amount a change to the order of such Payment reduction. The Company shall follow such revised reduction order, if and only if, the Company, in its sole discretion, determines such change does not violate the provisions of Code Section 409A. The Company acknowledges the Shareholders of the Company approved the Prior Agreement terms under Code Section 280G(b)(5) in December 2007.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the then, Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated rata among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.. Notwithstanding the order of priority of reduction set forth above, the Employee may include in the Employee’s election for a Scaled Back Amount a change to the order of such Payment reduction. The Company shall follow such revised reduction order, if and only if, the Company, in its sole judgment, determines such change does not violate the provisions of Code Section 409A.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section Section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to Company within thirty (30) days after the CompanyDate of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first. Notwithstanding the foregoing, in the event that any Payments would be subject to Excise Tax as a result of the change in control of Worldpay, the Excise Tax provisions of the Plan shall govern in lieu of this paragraph .

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section Section 280G of the Code (the "Scaled Back Amount"). Any Amount").Any such election must be in writing and delivered to Company within thirty (30) days after the CompanyDate of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they the reduction shall be reduced implemented in the following order of prioritypriority shall be followed in a manner that complies with Section 409A: (i) first from cash compensation, (ii) next from equity compensationcompensation that is not subject to 409A, followed by equity compensation that is subject to Section 409A, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first. Unless the Executive and Company otherwise agree in writing, any determination required under this section shall be made in writing by Golden Parachute Tax Solutions LLC and, if they are unavailable or otherwise unable to serve, by such other accounting firm that is nationally recognized as expert in Section 280G of the Code and is selected by the Company prior to a Change of Control and not providing services to the person effectuating such Change of Control, subject to the approval of the Employee (the “Accountants”), whose determination shall be conclusive and binding upon Executive and Company for all purposes, absent manifest error. For purposes of making the calculations required by this section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Without limiting the generality of the foregoing, any determination by the Accountants under this Section 26(c) will take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). The Accountants shall provide detailed supporting calculations to Company and Executive as requested by Company or Executive. Executive and Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this section. Company shall bear all costs the Accountants may incur in connection with any calculations contemplated by this section as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code.

Excise Taxes. Section 10 of the Agreement is replaced in its entirety with the following: “Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to Company within thirty (30) days after the CompanyDate of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments payments shall be reduced on a last to be paid, first reduced basis; , provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.. Notwithstanding the order of priority of reduction set forth above, the Employee may include in the Employee’s election for a Scaled Back Amount a change to the order of such Payment reduction. The Company shall follow such revised reduction order, if and only if, the Company, in its sole judgment, determined such change does not violate the provisions of Code Section 409A.”

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided Anything in this Agreement to the Employee contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment, benefit, vesting or distribution to or for the Employee's benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof otherwise) (an "Employment a “Payment" and, collectively, the "Employment Payments"”) would but for this Section 20 be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986Code, as amended or any comparable successor provisions (the "Code" and such tax, the "“Excise Tax"”), then the Payments shall be either (i) provided to Employee in full, or (ii) provided to Employee as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Employee on an after-tax basis, of the greatest amount of Payments, notwithstanding that all or some portion of such Payments may elect for be subject to the Excise Tax. Any determination required under this Section 20 shall be made in writing in good faith by the Company's independent certified public accountants, appointed prior to any change in ownership (as defined under Code Section 280G(b)(2), and/or tax counsel selected by such Employment Payments to be reduced to one dollar less than accountants (the amount that would constitute a "parachute payment" under section “Accounting Firm”) in accordance with the principles of Section 280G of the Code (Code. In the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee does not elect to have Employment event of a reduction of Payments reduced to the Scaled Back Amounthereunder, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priorityas follows: (i) first from cash compensationpayments which are included in full as parachute payments, (ii) next second from equity compensationawards which are included in full as parachute payments, then (iii) pro-rated among all remaining Employment third from cash payments which are partially included as parachute payments, and (iv) fourth from equity awards that are partially included as parachute payments. In applying these principles, any reduction or elimination of the Payments shall be made in a manner consistent with the requirements of Code Section 409A and benefits. Within each where two economically equivalent amounts are subject to reduction but payable at different times, such priority category, Employment Payments amounts shall be reduced on a last pro rata basis but not below zero. For purposes of making the calculations required by this Section 20, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section 20. All fees and expenses of the Accounting Firm shall be borne solely by the Company. If, notwithstanding any reduction described in this Section 20, the Internal Revenue Service (the “IRS”) determines that Employee is liable for the Excise Tax as a result of the receipt of the Payments as described above, then Employee shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Employee challenges the final IRS determination, a final judicial determination, a portion of the Payments equal to the “Repayment Amount.” The Repayment Amount with respect to the Payments shall be the smallest such amount, if any, as shall be required to be paidpaid to the Company so that Employee's net after-tax proceeds with respect to the Payments (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the Payments shall be zero if a Repayment Amount of more than zero would not result in Employee’s net after-tax proceeds with respect to the Payments being maximized. If the Excise Tax is not eliminated pursuant to this Section, first reduced basis; provided that Employee shall pay the Excise Tax. Notwithstanding any other provision of this Section 20, if (i) there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments as described in this Section 20, (ii) the IRS later determines that Employee is liable for the Excise Tax, the payment of which would result in the maximization of Employee’s net after-tax proceeds (calculated as if Employee’s Payments had not previously been reduced), and (iii) Employee pays the Excise Tax, then the Company shall pay to Employee those Payments which were reduced pursuant to this subsection as soon as administratively possible after Employee pays the Excise Tax so that Employee’s net after-tax proceeds with the least reduction in economic value provided respect to the Payments are maximized. For the avoidance of doubt, Employee acknowledges he is solely responsible for the payment of any Excise Tax and that the Company will not reimburse or otherwise indemnify him for such amount. Any reimbursements or repayments provided under this subsection shall be made strictly in accordance with Section 409A of the Code, including Treasury Regulation 1.409A-3(i)(1)(v). Notwithstanding anything in this Agreement to the contrary, if any payments or benefits due to Employee hereunder would cause the application of an accelerated or additional tax under Section 409A of the Code (“Section 409A”), such payments or benefits shall be restructured in a manner which does not cause such an accelerated or additional tax. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement during the six-month period immediately following Employee’s separation from service shall instead be paid on the on the first payroll date which is more than six months following the date of separation from service (or death, if earlier). In the event that Employee receives reduced payments and benefits as a result of the application of this Section, reduction shall be made from payments and benefits which are determined not to be nonqualified deferred compensation for purposes of Section 409A of the Code first, and then shall be made (to the extent necessary) out of payments and benefits which are subject to Section 409A of the Code and which are due at the latest future date, to the extent such reduction would not trigger adverse tax consequences under Section 409A of the Code.

Excise Taxes. If (i) In the event that any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of amounts payable under this Agreement or otherwise in connection withto the Employee would (1) constitute "parachute payments" within the meaning of Section 280G of the Code or any comparable successor provision and (2) but for this Section 25(b), or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended or any comparable successor provision (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided amounts payable to the Employee shall be either (y) provided to the Employee in full or (z) provided to the Employee to the maximum extent that would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the Employee's receipt, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 25(b) shall be made in writing in good faith by the Employer's independent accounting firm (the "Independent Accountants"). In the event of a reduction in benefits hereunder, the reduction of the total payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the Code: (I) any cash severance payments subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (2) any cash severance payments not subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (3) any acceleration of vesting of any equity subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest; and (4) ally acceleration of vesting of any equity not subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest. For purposes of making the calculations required by this Section 25(b), the Independent Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of the Code and other applicable legal authority. The Employer and the Employee shall furnish to the Independent Accountants such information and documents as the Independent Accountants may reasonably request in order to make a determination under this Section 25(b). The Employer shall bear all costs that the Independent Accountants may reasonably incur in connection with any calculations contemplated by this Section 25(b). (ii) If notwithstanding any reductions described in this Section 25(b) the Internal Revenue Service (the "IRS") determines that the Employee is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then the Employee shall be obligated to pay back to the Employer, within 30 days after a final IRS determination or, in the event that the Employee challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the Repayment Amount. The "Repayment Amount," with respect to the payment of benefits, shall be the smallest such amount, if any, that is required to be paid to the Employer so that the Employee's net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) are maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in the Employee's net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this Section 25(b), the Employee shall pay the Excise Tax. (iii) Notwithstanding any other provision of this Section 25(b) if (I) there is a reduction in the payment of benefits as described in this Section 25(b), (2) the IRS later determines that the Employee is liable for the Excise Tax, the payment of which would result in the maximization of the Employee's net after-tax proceeds (calculated as if the Employee's benefits had not previously been reduced), and (3) the Employee pays the Excise Tax, then the Employer shall pay to the Employee those benefits which were reduced firstpursuant to this Section 25(b) as soon as administratively possible after the Employee pays the Excise Tax, so that the Employee's net after-tax proceeds with respect to the payment of benefits are maximized.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee Executive or for the EmployeeExecutive's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee Executive may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee Executive does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee Executive shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee Executive shall not be entitled to a gross-up gross‑up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated pro‑rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee Executive shall be reduced first.. 35622149 12

Excise Taxes. If Notwithstanding anything herein to the contrary, in the event that any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of this Agreement payable hereunder or otherwise in connection with, or arising out of, employment with to Employee (the Company or its subsidiaries or the termination thereof (an "Employment Payment" and, collectively, the "Employment “Payments") would (a) constitute “parachute payments" within the meaning of Section 280G of the Code, and (b) but for this sentence, would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"), then the Employee may elect for such Employment Payments to will be reduced to one dollar less be equal to the Reduced Amount (as defined below) if and to the extent that a reduction in the Payments would result in Employee retaining a larger amount, on an after-tax basis (taking into account federal, state and local income and employment taxes and the Excise Tax), than if Employee received the entire amount of such Payments in accordance with their existing terms. The “Reduced Amount" will be the largest portion of the Payments that would constitute a "parachute payment" under section 280G result in no portion of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered Payments being subject to the Company. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If a reduction in payments or benefits constituting “parachute payments" is necessary so that the Employment Payments are Payment equals the Reduced Amount, reduction shall occur in a manner necessary to be reducedprovide Employee with the greatest economic benefit. If more than one manner of reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, they the payments and benefits shall be reduced pro rata. Employee may not exercise any discretion with respect to the ordering of any reductions of payments or benefits under this Clause 12. Unless the Parties otherwise agree in the following order of priority: (i) first from cash compensationwriting, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments any determination required under this Clause 12 shall be reduced on a last to made in writing by Employer’s or an Affiliate’s independent public accountants (the “Accountants"), whose determination shall be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any conclusive and binding upon Employer and Employee for all purposes. For purposes of making the foregoing categories are to be reduced firstcalculations required by this Clause 12, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided Accountants may make reasonable assumptions and approximations concerning applicable taxes. The Parties shall furnish to the Employee Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Clause 12. Employer shall be reduced firstbear all costs incurred for and by the Accountants in connection with any calculations or determinations contemplated by this Clause 12.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may may, at his discretion, elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-gross­ up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, compensation described in Section 9(a)(iii); (ii) next from cash compensation described in Section 9(a)(ii); (iii) cash compensation described in Section 9(a)(v); (ii) equity compensationcompensation described in Section 9(a)(iv) (first any equity compensation that constitutes deferred compensation subject to Section 409A and then equity compensation that is not subject to Section 409A), and then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If (i) In the event that any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of amounts payable under this Agreement or otherwise in connection with, to the Employee would (1) constitute “parachute payments” within the meaning of Section 280G of the Code or arising out of, employment with the Company or its subsidiaries or the termination thereof any comparable successor provision and (an "Employment Payment" and, collectively, the "Employment Payments"2) would but for this Section 25(b). be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended or any comparable successor provision (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided amounts payable to the Employee shall be either (y) provided to the Employee in full or (z) provided to the Employee to the maximum extent that would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the Employee’s receipt, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 25(b) shall be made in writing in good faith by the Employer’s independent accounting firm (the “Independent Accountants”). In the event of a reduction in benefits hereunder, the reduction of the total payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the Code: (1) any cash severance payments subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (2) any cash severance payments not subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (3) any acceleration of vesting of any equity subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest; and (4) any acceleration of vesting of any equity not subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest. For purposes of making the calculations required by this Section 25(b), the Independent Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of the Code and other applicable legal authority. The Employer and the Employee shall furnish to the Independent Accountants such information and documents as the Independent Accountants may reasonably request in order to make a determination under this Section 25(b). The Employer shall bear all costs that the Independent Accountants may reasonably incur in connection with any calculations contemplated by this Section 25(b). (ii) If notwithstanding any reductions described in this Section 25(b) the Internal Revenue Service (the “IRS”) determines that the Employee is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then the Employee shall be obligated to pay back to the Employer, within 30 days after a final IRS determination or, in the event that the Employee challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the Repayment Amount. The “Repayment Amount,” with respect to the payment of benefits, shall be the smallest such amount, if any, that is required to be paid to the Employer so that the Employee’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) are maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in the Employee’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this Section 25(b), the Employee shall pay the Excise Tax. (iii) Notwithstanding any other provision of this Section 25(b), if (1) there is a reduction in the payment of benefits as described in this Section 25(b), (2) the IRS later determines that the Employee is liable for the Excise Tax, the payment of which would result in the maximization of the Employee’s net after-tax proceeds (calculated as if the Employee’s benefits had not previously been reduced), and (3) the Employee pays the Excise Tax, then the Employer shall pay to the Employee those benefits which were reduced firstpursuant to this Section 25(b) as soon as administratively possible after the Employee pays the Excise Tax, so that the Employee’s net after-tax proceeds with respect to the payment of benefits are maximized.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first. [Remainder of page is intentionally blank.]

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Code Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then then, the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Code Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement agreement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated rata among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first. Notwithstanding the order of priority of reduction set forth above, the Employee may include in the Employee’s election for a Scaled Back Amount a change to the order of such Payment reduction. The Company shall follow such revised reduction order, if and only if, the Company, in its sole discretion, determines such change does not violate the provisions of Code Section 409A. The Company acknowledges the Shareholders of the Company approved the Prior Agreement terms under Code Section 280G(b)(5) in December, 2007.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its respective subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may may, at his discretion, elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section Section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If Notwithstanding anything herein to the contrary, in the event that any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of this Agreement payable hereunder or otherwise in connection withto Employee (the “Payments”) would (a) constitute “parachute payments” within the meaning of Section 280G of the Code, or arising out ofand (b) but for this sentence, employment with the Company or its subsidiaries or the termination thereof (an "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"), then the Employee may elect for such Employment Payments to will be reduced to one dollar less be equal to the Reduced Amount (as defined below) if and to the extent that a reduction in the Payments would result in Employee retaining a larger amount, on an after-tax basis (taking into account federal, state and local income and employment taxes and the Excise Tax), than if Employee received the entire amount of such Payments in accordance with their existing terms. The “Reduced Amount" will be the largest portion of the Payments that would constitute a "parachute payment" under section 280G result in no portion of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered Payments being subject to the Company. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If a reduction in payments or benefits constituting “parachute payments" is necessary so that the Employment Payments are Payment equals the Reduced Amount, reduction shall occur in a manner necessary to be reducedprovide Employee with the greatest economic benefit. If more than one manner of reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, they the payments and benefits shall be reduced pro rata. Employee may not exercise any discretion with respect to the ordering of any reductions of payments or benefits under this Clause 12. Unless the Parties otherwise agree in the following order of priority: (i) first from cash compensationwriting, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments any determination required under this Clause 12 shall be reduced on a last to made in writing by Employer’s or an Affiliate’s independent public accountants (the “Accountants"), whose determination shall be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any conclusive and binding upon Employer and Employee for all purposes. For purposes of making the foregoing categories are to be reduced firstcalculations required by this Clause 12, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided Accountants may make reasonable assumptions and approximations concerning applicable taxes. The Parties shall furnish to the Employee Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Clause 12. Employer shall be reduced firstbear all costs incurred for and by the Accountants in connection with any calculations or determinations contemplated by this Clause 12.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, compensation described in Section 9(a)(iii); (ii) next from cash compensation described in Section 9(a)(ii); (iii) cash compensation described in Section 9(a)(v); (iv) equity compensationcompensation described in Section 9(a)(iv) (first any equity compensation that constitutes deferred compensation subject to Section 409A and then equity compensation that is not subject to Section 409A), and then (iiiv) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. Section 10 of the Agreement is replaced in its entirety with the following: “Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to Company within thirty (30) days after the CompanyDate of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments payments shall be reduced on a last to be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.. Notwithstanding the order of priority of reduction set forth above, the Employee may include in the Employee’s election for a Scaled Back Amount a change to the order of such Payment reduction. The Company shall follow such revised reduction order, if and only if, the Company, in its sole judgment, determined such change does not violate the provisions of Code Section 409A.”

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section Section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, ; (ii) next from equity compensationcompensation described in Section 9(a)(iv) (first any equity compensation that constitutes deferred compensation subject to Section 409A and then equity compensation that is not subject to Section 409A), and then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first. [Remainder of page is intentionally blank.]

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or D&B or its respective subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may may, at his discretion, elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany or D&B within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated rata among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section Section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to Company within thirty (30) days after the CompanyDate of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section Section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first. [Remainder of page is intentionally blank.]

Excise Taxes. Section 10 of the Agreement is replaced in its entirety with the following: “Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to the CompanyCompany within thirty (30) days after the Date of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated rata among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.”

Excise Taxes. If (i) In the event that any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of amounts payable under this Agreement or otherwise in connection withto the Employee would (1) constitute “parachute payments” within the meaning of Section 280G of the Code or any comparable successor provision and (2) but for this Section 25(b), or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended or any comparable successor provision (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to the Company. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided amounts payable to the Employee shall be either (y) provided to the Employee in full or (z) provided to the Employee to the maximum extent that would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the Employee’s receipt, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 25(b) shall be made in writing in good faith by the Company’s independent accounting firm (the “Independent Accountants”). In the event of a reduction in benefits hereunder, the reduction of the total payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the Code: (1) any cash severance payments subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (2) any cash severance payments not subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (3) any acceleration of vesting of any equity subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest; and (4) any acceleration of vesting of any equity not subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest. For purposes of making the calculations required by this Section 25(b), the Independent Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of the Code and other applicable legal authority. The Company and the Employee shall furnish to the Independent Accountants such information and documents as the Independent Accountants may reasonably request in order to make a determination under this Section 25(b). The Company shall bear all costs that the Independent Accountants may reasonably incur in connection with any calculations contemplated by this Section 25(b). (ii) If notwithstanding any reductions described in this Section 25(b) the Internal Revenue Service (the “IRS”) determines that the Employee is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then the Employee shall be obligated to pay back to the Company, within 30 days after a final IRS determination or, in the event that the Employee challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the Repayment Amount. The “Repayment Amount,” with respect to the payment of benefits, shall be the smallest such amount, if any, that is required to be paid to the Company so that the Employee’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) are maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in the Employee’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this Section 25(b), the Employee shall pay the Excise Tax. (iii) Notwithstanding any other provision of this Section 25(b), if (1) there is a reduction in the payment of benefits as described in this Section 25(b), (2) the IRS later determines that the Employee is liable for the Excise Tax, the payment of which would result in the maximization of the Employee’s net after-tax proceeds (calculated as if the Employee’s benefits had not previously been reduced), and (3) the Employee pays the Excise Tax, then the Company shall pay to the Employee those benefits which were reduced firstpursuant to this Section 25(b) as soon as administratively possible after the Employee pays the Excise Tax, so that the Employee’s net after-tax proceeds with respect to the payment of benefits are maximized.

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an a "Employment Payment" and, collectively, the "Employment Payments") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "Excise Tax"), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "parachute payment" under section Section 280G of the Code (the "Scaled Back Amount"). Any such election must be in writing and delivered to Company within thirty (30) days after the CompanyDate of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they shall be reduced in the following order of priority: (i) first from cash compensation, (ii) next from equity compensation, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first.. [signature page follows]

Excise Taxes. If any payments or benefits paid or provided or to be paid or provided to the Employee or for the Employee's ’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, employment with the Company or its subsidiaries or the termination thereof (an "Employment a “Payment" ” and, collectively, the "Employment “Payments"”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code" and such tax, the "“Excise Tax"”), then the Employee may elect for such Employment Payments to be reduced to one dollar less than the amount that would constitute a "“parachute payment" ” under section Section 280G of the Code (the "“Scaled Back Amount"”). Any such election must be in writing and delivered to Company within thirty (30) days after the CompanyDate of Termination. If the Employee does not elect to have Employment Payments reduced to the Scaled Back Amount, the Employee shall be responsible for payment of any Excise Tax resulting from the Employment Payments and the Employee shall not be entitled to a gross-up payment under this Agreement or any other arrangement for such Excise Tax. If the Employment Payments are to be reduced, they the reduction shall be reduced implemented in the following order of prioritypriority shall be followed in a manner that complies with Section 409A: (i) first from cash compensation, (ii) next from equity compensationcompensation that is not subject to 409A, followed by equity compensation that is subject to Section 409A, then (iii) pro-rated among all remaining Employment Payments payments and benefits. Within each such priority category, Employment Payments shall be reduced on a last to be paid, first reduced basis; provided that if To the extent there is a question as to which Employment Payments within any of the foregoing categories are to be reduced first, the Employment Payments that will produce the greatest present value reduction in the Employment Payments with the least reduction in economic value provided to the Employee shall be reduced first. Unless the Executive and Company otherwise agree in writing, any determination required under this section shall be made in writing by Golden Parachute Tax Solutions LLC and, if they are unavailable or otherwise unable to serve, by such other accounting firm that is nationally recognized as expert in Section 280G of the Code and is selected by the Company prior to a Change of Control and not providing services to the person effectuating such Change of Control, subject to the approval of the Employee (the “Accountants”), whose determination shall be conclusive and binding upon Executive and Company for all purposes, absent manifest error. For purposes of making the calculations required by this section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Without limiting the generality of the foregoing, any determination by the Accountants under this Section 26(c) will take into account the value of any reasonable compensation for services to be rendered by Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). The Accountants shall provide detailed supporting calculations to Company and Executive as requested by Company or Executive. Executive and Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this section. Company shall bear all costs the Accountants may incur in connection with any calculations contemplated by this section as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code.