Common use of Parachute Payment Clause in Contracts

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion of the Payment (including all of it) which, after taking into account all applicable federal, state and local income and employment taxes (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not all or some portion of the Payment is subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If In the event the benefits provided by this Agreement, when aggregated with any payment other payments or benefit the Executive benefits received by you, would receive pursuant to this Agreement (each, a “Payment”) would: (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects you elect in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s your stock awards unless the Executive elects you elect in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company within fifteen (15) calendar days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the Company) or such other time as requested by the Executive you or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive you and the Company with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive you and the Company.

Parachute Payment. If In the event that any payment of the payments and benefits provided for in this Agreement or benefit otherwise payable to the Executive would receive pursuant to this Agreement (each, a “280G Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then any such 280G Payment pursuant to this Agreement (a “Payment”) shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (i) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (ii) the largest portion, up to and including all the total, of itthe Payment, whichever amount (i.e., the amount determined by clause (i) whichor by clause (ii)), after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the receipt by Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not greater economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments a Payment is necessary so that required pursuant to the Payment equals preceding sentence and the Reduced AmountAmount is determined pursuant to clause (x) of the preceding sentence, the reduction shall occur in the following order unless manner (the Executive elects “Reduction Method”) that results in writing a different order the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (providedthe “Pro Rata Reduction Method”). Notwithstanding the foregoing, however, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A that such election shall would not otherwise be subject to Company approval if made on or after taxes pursuant to Section 409A, then the effective date of Reduction Method and/or the event that triggers Pro Rata Reduction Method, as the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reducedcase may be, such acceleration of vesting shall be cancelled in modified so as to avoid the reverse order imposition of taxes pursuant to Section 409A as follows: (A) as a first priority, the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything modification shall preserve to the contrary set forth hereingreatest extent possible, the greatest economic benefit for Executive may as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute contingent on future events; and (C) as a third priority, Payments that are “nonqualified deferred compensation” within the meaning of Section 409A shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A. Unless the Code such that Company and the Executive would incur otherwise agree in writing, any determination required under this Section 9 shall be made in writing by independent public accountants appointed by the additional twenty percent (20%) tax under Section 409A of Company and reasonably acceptable to the Code Executive (the “409A TaxAccountants”). In addition, if a different order of reduction is required to avoid whose determination shall be conclusive and binding upon the 409A Tax, that order shall apply. The accounting firm then engaged by Executive and the Company for general audit purposes shall perform the foregoing calculationsall purposes. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculationsdetermination, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by and the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect Accountants such information and documents as the Accountants may reasonably request in order to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Companymake a determination under this Section 9.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order order: (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards other than stock options; (iii) cancellation of accelerated vesting of stock awardsoptions; and (iv) reduction of employee benefitsother benefits paid to Executive. Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A (as defined in Section 4.9 below) and then with respect to amounts that are. In the event that acceleration of vesting of stock award compensation from Executive’s equity awards is to be reduced, such acceleration of vesting shall be cancelled canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant grant. In the event it is subsequently determined by the Internal Revenue Service that some portion of the Executive’s stock awards unless Reduced Amount (as determined pursuant to clause (x) in the Executive elects in writing a different order for cancellation. Notwithstanding anything preceding paragraph) is subject to the contrary set forth hereinExcise Tax, Executive agrees to promptly return to the Company a sufficient amount of the Payment so that no portion of the Reduced Amount is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, Executive will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless Executive and the Company agree on an alternative accounting, law or consulting firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If Executive is strongly encouraged to review the following provision and consult with his or her tax and financial advisor concerning the application of any payment personal tax consequences related to any payments provided for under this Agreement and the following provision. In the event that any of the payments and benefits provided for in this Agreement or benefit otherwise payable to the Executive would receive pursuant to this Agreement (each, a “280G Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then any such 280G Payment pursuant to this Agreement (a “Payment”) shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (i) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (ii) the largest portion, up to and including all the total, of itthe Payment, whichever amount (i.e., the amount determined by clause (i) whichor by clause (ii)), after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the receipt by Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not greater economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments a Payment is necessary so that required pursuant to the Payment equals preceding sentence and the Reduced AmountAmount is determined pursuant to clause (x) of the preceding sentence, the reduction shall occur in the following order unless manner (the Executive elects “Reduction Method”) that results in writing a different order the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (providedthe “Pro Rata Reduction Method”). Notwithstanding the foregoing, however, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A that such election shall would not otherwise be subject to Company approval if made on or after taxes pursuant to Section 409A, then the effective date of Reduction Method and/or the event that triggers Pro Rata Reduction Method, as the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reducedcase may be, such acceleration of vesting shall be cancelled in modified so as to avoid the reverse order imposition of taxes pursuant to Section 409A as follows: (A) as a first priority, the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything modification shall preserve to the contrary set forth hereingreatest extent possible, the greatest economic benefit for Executive may as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute contingent on future events; and (C) as a third priority, Payments that are “nonqualified deferred compensation” within the meaning of Section 409A shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A. Unless the Code such that Company and the Executive would incur otherwise agree in writing, any determination required under this Section 8 shall be made in writing by independent public accountants appointed by the additional twenty percent (20%) tax under Section 409A of Company and reasonably acceptable to the Code Executive (the “409A TaxAccountants”). In addition, if a different order of reduction is required to avoid whose determination shall be conclusive and binding upon the 409A Tax, that order shall apply. The accounting firm then engaged by Executive and the Company for general audit purposes shall perform the foregoing calculationsall purposes. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculationsdetermination, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by and the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect Accountants such information and documents as the Accountants may reasonably request in order to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Companymake a determination under this Section 8.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment the Executive shall be reduced entitled to receive an additional payment from the Reduced Amount. The Company (the “Reduced Amount” shall be equal to Gross-Up Payment”) in an amount such that the largest portion net amount of such additional payment retained by the Payment (including all of it) whichExecutive, after taking into account payment of all applicable federal, state and local income and employment taxes (all computed at and Excise Taxes imposed on the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an afterGross-tax basis, of the greatest amount of the Up Payment, whether or not all or some portion of the Payment is subject shall be equal to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made Tax imposed on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In The Company shall pay Executive the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of Gross-Up Payment as soon as practicable following the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything right to the contrary set forth hereinapplicable Payment is triggered, but in no event will the Company make such Gross-Up Payment later than the time required by the rules governing Section 409A, including, but not limited to, Treasury Regulation 1.409A-3(i)(1)(v). Unless Executive and the Company agree on an alternative accounting, law or consulting firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing Gross-Up Payment calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for the Executive. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount (as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph) is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, Executive will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless Executive and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If In the accounting firm determines that no event the payment of any amounts pursuant to this letter agreement would result in Executive being subject to an Excise Tax is payable with respect (without giving effect to a Payment, either before or after the application of any reduction in such payments to the Reduced Amount), it shall furnish at Executive’s request in Executive’s sole discretion, the Executive Company will use its commercially reasonable best efforts to obtain a vote of the stockholders of the Company approving such payments in the manner set forth in Section 280G(b)(5)(B) of the Code and the Company with an opinion reasonably acceptable Treasury Regulations issued thereunder such that the payments would not be subject to the Excise Tax if the required stockholder approval is obtained. In the event Executive so requests that no such a vote be taken, Executive agrees to execute a waiver and enter into such additional agreements as may be reasonably requested by the Company in relation thereto, including, without limitation, agreeing that the portion of such payments that would otherwise, if made, result in Executive becoming liable for the Excise Tax will not be imposed with respect to such Payment. Any good faith determinations of made if the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Companyrequired stockholder approval is not obtained.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Retained Amount. The “Reduced Retained Amount” shall be equal to the greater of (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Retained Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for Executive. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election the items so reduced will be reduced pro rata. Any reduction shall be made in the following manner: first a pro rata reduction of (i) cash payments subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that as deferred compensation and (ii) cash payments not subject to Section 409A of the Executive would incur the additional twenty percent Code, and second a pro rata cancellation of (20%i) tax under equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the “Code. Reduction in either cash payments or equity compensation benefits shall be made pro rata between and among benefits which are subject to Section 409A Tax”)of the Code and benefits which are exempt from Section 409A of the Code. In additionthe event it is subsequently determined by the Internal Revenue Service that some portion of the Retained Amount (as determined pursuant to clause (x) in the preceding paragraph) is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the Payment so that no portion of the Retained Amount is subject to the Excise Tax. For the avoidance of doubt, if a different order the Retained Amount is determined in accordance with clause (y) in the preceding paragraph, Executive will have no obligation to return any portion of reduction is required the Payment pursuant to avoid the 409A Taxpreceding sentence. Unless Executive and the Company agree on an alternative accounting, that order shall apply. The law or consulting firm, the accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change in Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): order: reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall applyawards. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) 15 calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive CFO would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the ExecutiveCFO’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for CFO. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount (as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph) is subject to the Excise Tax, CFO agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, CFO will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless CFO and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive CFO and the Company within fifteen (15) 15 calendar days after the date on which the ExecutiveCFO’s right to a Payment is triggered (if requested at that time by the Executive CFO or the Company) or such other time as requested by the Executive CFO or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change in Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): order: reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall applyawards. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) 15 calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit In the Executive would receive pursuant to this Agreement (each, a “Payment”) would: event that (i) Employee becomes entitled to any payments or benefits hereunder or otherwise from the Company or any of its affiliates which constitute a “Parachute Paymentparachute payment” within the meaning of as defined in Code Section 280G of the Internal Revenue Code of 1986, as amended (the “CodeTotal Payments”); ) and (ii) but for this sentence, be Employee is subject to the an excise tax imposed by under Code Section 4999 of the Code (the “Excise Tax”), then such Payment then, if it would be economically advantageous for Employee, the Total Payments shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion of the Payment by an amount (including all of itzero) which, that results in the receipt by Employee on an after taking into account all tax basis (including the applicable U.S. federal, state and local income and employment taxes (all computed at the highest applicable marginal rate)taxes, and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, ) of the greatest amount Total Payments, notwithstanding that some or all of the Payment, whether or not all or some portion of the Payment is Total Payments may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Total Payments is necessary so that required pursuant to the Payment equals preceding sentence, the Reduced Amount, reduction shall will occur in the following order unless manner (the Executive elects “Reduction Method”) that results in writing a different order the greatest economic benefit for Employee. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (providedthe “Pro Rata Reduction Method”). Notwithstanding the foregoing, however, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Total Payments being subject to taxes pursuant to Code Section 409A (as defined below) that such election shall would not otherwise be subject to Company approval if made on or after taxes pursuant to Section 409A, then the effective date Reduction Method and/or the Pro Rata Reduction Method, as the case may be, will be modified so as to avoid the imposition of taxes pursuant to Section 409A as follows: (A) as a first priority, the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything modification will preserve to the contrary set forth hereingreatest extent possible, the Executive may greatest economic benefit for Employee as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without Cause), will be reduced (or eliminated) before Payments that are not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute contingent on future events; and (C) as a third priority, Payments that are “nonqualified deferred compensation” within the meaning of Section 409A will be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if 409A. All calculations hereunder shall be performed by a different order of reduction is required to avoid the 409A Tax, that order shall apply. The nationally recognized independent accounting firm then engaged selected by the Company for general audit purposes shall perform Company, with the foregoing calculations. The Company shall bear all expenses with respect to the determinations full cost of such firm being borne by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting Any determinations made by such firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, final and binding and conclusive upon the Executive on Employee and the Company.

Parachute Payment. If In the event the benefits provided by this Agreement, when aggregated with any payment other payments or benefit the Executive benefits received by you, would receive pursuant to this Agreement (each, a “Payment”) would: (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): order: reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s your stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall applyawards. The accounting firm then engaged by the Company for general audit purposes or tax advisory/compliance as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company within fifteen (15) calendar days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the Company) or such other time as requested by the Executive you or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive you and the Company with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive you and the Company.

Parachute Payment. If any payment or benefit Notwithstanding anything in this Section 8 to the Executive would receive pursuant to this Agreement (eachcontrary, if you are a “Payment”Disqualified Individual” (as defined in Section 280G(c) would: of the Code) and the payment provided for in this Section 8, together with any other payments which you have the right to receive from the Company (iincluding without limitation the payments under Section 8.3 and the acceleration of vesting of equity awards under Company equity incentive plans) would constitute a “Parachute Payment” within the meaning of (as defined in Section 280G 280G(b)(2) of the Internal Revenue Code Code), the total amounts received by you from the Company which constitute Parachute Payments shall be reduced by the minimum amount necessary so that no portion of 1986, as amended (the “Code”); and (ii) but for this sentence, such amounts received by you shall be subject to the excise tax imposed by Section 4999 of the Code if and only if such reduction in the amount paid produces a better net after tax position (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax) than the total payment provided for herein. The determination as to whether and to what extent payments you have the right to receive from the Company are required to be reduced in accordance with the preceding sentence shall be made at the Company’s expense by a legal, accounting or consulting firm expert in such matters as appointed by the Company (the “Excise TaxOutside Firm”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion of the Payment (including all of it) which, after taking into account all applicable federal, state and local income and employment taxes (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, value of the greatest amount of the Payment, whether or not all or some portion of the Payment is subject any reasonable compensation for services to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on rendered by you before or after the effective date change in control, including under any agreement not to render services to competitors pursuant to any non-competition provisions that may apply to you to the extent permitted by Section 280G of the event that triggers Code and the Payment): reduction Company shall cooperate in the valuation of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsany such services, including any non-competition provisions. In the event that acceleration of vesting any underpayment or overpayment under this Agreement, as determined by the Outside Firm, the amount of stock award compensation is such underpayment or overpayment shall immediately be paid to you or refunded to the Company, as the case may be, with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. The payment reduction contemplated by this Section 8.6 shall be made by reducing, first, payments or benefits to be reduced, such acceleration of vesting shall be cancelled paid in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects cash hereunder in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments such payment would be paid or benefits will occur if provided (beginning with such election payment that would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentationlast in time and continuing, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Paymentextent necessary, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect through to such Payment. Any good faith determinations of the accounting firm payment that would be made first in time) and, then, reducing any payment to be provided in-kind hereunder shall be final, binding and conclusive upon the Executive and the Companyin a similar order.

Parachute Payment. If Notwithstanding any payment or benefit the Executive would receive pursuant to other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its Affiliates to Executive or for Executive's benefit under this Agreement or otherwise (each, a “PaymentCovered Payments”) would: (i) would collectively constitute a “Parachute Payment” parachute payment within the meaning of Section 280G of the Internal Revenue Code (“Parachute Payment”) and if the Net After-Tax Amount of 1986, as amended (such Parachute Payment to Executive is less than 10% more than the “Code”); and (ii) but for this sentence, Net After-Tax Amount to Executive would be subject if the Covered Payments otherwise constituting the Parachute Payment were limited to the maximum Parachute Value of Covered Payments that Executive could receive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties regarding such taxes (collectively, the “Excise Tax”), then such the Company shall reduce the Covered Payments otherwise constituting the Parachute Payment shall be reduced to so that the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion Parachute Value of the Payment (including all of it) whichCovered Payments, after taking into account all applicable federal, state and local income and employment taxes (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receiptaggregate, on an after-tax basis, will equal the maximum Parachute Value of the greatest amount of the Payment, whether or not all or some portion of the Payment is Covered Payments that Executive can receive without any Covered Payments being subject to the Excise Tax. If Should such a reduction in payments Covered Payments be required, Executive is entitled, subject to the following sentence, to designate those Covered Payments under this Agreement or benefits constituting the other arrangements that will be reduced or eliminated so as to achieve the specified reduction in Covered Payments to Executive and avoid characterization of such Covered Payments as a Parachute Payment. The Company will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. To the extent that Executive’s ability to make such a designation would cause any of the Covered Payments is to become subject to any additional tax under Code Section 409A, or if Executive fails to make such a designation within ten business days of receiving the requested information from the Company, then the Company shall achieve the necessary so that reduction in the Payment equals the Reduced Amount, reduction shall occur Covered Payments by reducing them in the following order unless the Executive elects in writing a different order order: (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): i) reduction of cash paymentspayments payable under this Agreement; (ii) reduction of other payments and benefits to be provided to Executive; (iii) cancellation or reduction of accelerated vesting of stock awardsequity-based awards that are subject to performance-based vesting conditions; and (iv) cancellation or reduction of employee benefitsaccelerated vesting of equity-based awards that are subject only to service-based vesting conditions. In If the event that acceleration of the vesting of stock award compensation Executive’s equity-based awards is to be cancelled or reduced, such acceleration of vesting shall will be reduced or cancelled in the reverse order of the date of grant grant. For purposes of this Section 4.01, a “Net After-Tax Amount” is determined by taking into account all applicable income, excise and employment taxes, whether imposed at the federal, state or local level, including the Excise Tax, and the “Parachute Value” of a Covered Payment means the present value as of the Executive’s stock awards unless date of the Executive elects Change in writing a different order Control for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning purposes of Section 409A 280G of the Code of the portion of such Covered Payment that the Executive would incur the additional twenty percent (20%) tax constitutes a Parachute Payment under Section 409A 280G(b)(2) of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the CompanyCode.

Parachute Payment. If Notwithstanding any other provision of this Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by Employee with Company, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this paragraph (an "Other Agreement"), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to Employee (including groups or classes of participants or beneficiaries of which Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Employee (a "Benefit Arrangement"), if Employee is a "disqualified individual," as defined in Section 280G(c) of the Code, any stock options or restricted stock held by Employee and any right to receive any payment or other benefit under this Agreement shall not become exercisable or vested (i) to the extent that such right to exercise, vesting, payment, or benefit, taking into account all other rights, payments, or benefits to or for Employee under this Agreement, all Other Agreements, and all Benefit Arrangements, would cause any payment or benefit the Executive would receive pursuant to Employee under this Agreement (each, to be considered a “Payment”) would: (i) constitute a “Parachute Payment” "parachute payment" within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended then in effect (the “Code”); a "Parachute Payment") and (ii) but for this sentenceif, be subject to as a result of receiving a Parachute Payment, the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion of the Payment (including all of it) which, after taking into account all applicable federal, state and local income and employment taxes (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an aggregate after-tax basisamounts received by Employee from the Company under this Agreement, of all Other Agreements, and all Benefit Arrangements would be less than the greatest maximum after-tax amount of the that could be received by Employee without causing any such payment or benefit to be considered a Parachute Payment, whether or not all or some portion of the Payment is subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration the receipt of vesting of stock award compensation is any such right to exercise, vesting, payment, or benefit under this Agreement, in conjunction with all other rights, payments, or benefits to or for Employee under any Other Agreement or any Benefit Arrangement would cause Employee to be reduced, such acceleration considered to have received a Parachute Payment that would have the effect of vesting shall be cancelled decreasing the after-tax amount received by Employee as described in the reverse order clause (ii) of the date of grant of preceding sentence, then Employee shall have the Executive’s stock awards unless the Executive elects right, in writing a different order for cancellation. Notwithstanding anything Employee's sole discretion, to the contrary set forth hereindesignate those rights, the Executive may not elect the order in which the reduction in the Executive’s payments payments, or benefits will occur if such election would cause under this Agreement, any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such Other Agreements, and any Benefit Arrangements that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required should be reduced or eliminated so as to avoid having the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect payment or benefit to the determinations by such accounting firm required Employee under this Agreement be deemed to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Parachute Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments; , (2) cancellation of accelerated vesting of stock equity awards; , and (3) reduction of employee benefits. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock equity awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, or is unwilling to perform this function, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting or law firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for Executive. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount (as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph) is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, Executive will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless Executive and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) 15 calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit In the Executive would receive pursuant to event the benefits provided by this Agreement letter agreement (each, a the “Payment”) would: ), when aggregated with any other payments or benefits received by you, would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local income taxes and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments a “parachute payment” is necessary so that the Payment equals the Reduced Amount, such reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, manner that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled results in the reverse order greatest economic benefit for you. If more than one method of reduction will result in the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order same economic benefit for cancellation. Notwithstanding anything to the contrary set forth hereinyou, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits items so reduced will occur if such election would cause be reduced pro rata. Within any such category of payments and benefits, a reduction shall occur first with respect to amounts to constitute that are not “nonqualified deferred compensation” within the meaning of Section 409A of the Code such and then with respect to amounts that are. In the Executive would incur event it is subsequently determined by the additional twenty percent (20%) tax under Section 409A Internal Revenue Service that some portion of the Code Reduced Amount as determined pursuant to clause (x) in the “409A preceding paragraph is subject to the Excise Tax”), you agree to promptly return to the Company a sufficient amount of the Payment so that no portion of the Reduced Amount is subject to the Excise Tax. In additionFor the avoidance of doubt, if a different order the Reduced Amount is determined pursuant to clause (y) in the preceding paragraph, you will have no obligation to return any portion of reduction is required the Payment pursuant to avoid the 409A Tax, that order shall applypreceding sentence. The accounting firm then engaged by the Company Ambit for general audit tax purposes shall perform the foregoing calculations. The Company Ambit shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company Ambit within fifteen seven (157) calendar business days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the CompanyAmbit) or at such other earlier time as requested by the Executive you or the CompanyAmbit. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive you and the Company Ambit with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon you and Ambit. In the Executive event the payment of any amounts pursuant to this letter agreement would result in your being subject to an Excise Tax (without giving effect to any reduction in such payments to the Reduced Amount), at your request in your sole discretion, Ambit will use its commercially reasonable best efforts to obtain a vote of the stockholders of Ambit approving such payments in the manner set forth in Section 280G(b)(5)(B) of the Code and the CompanyTreasury Regulations issued thereunder such that the payments would not be subject to the Excise Tax if the required stockholder approval is obtained. In the event you so request that such a vote be taken, you agree to execute a waiver and enter into such additional agreements as may be reasonably requested by Ambit in relation thereto, including, without limitation, agreeing that the portion of such payments that would otherwise, if made, result in your becoming liable for the Excise Tax will not be made if the required stockholder approval is not obtained.

Parachute Payment. If any payment or benefit In the Executive would receive pursuant to event the benefits provided by this Agreement letter agreement (each, a the “Payment”) would: ), when aggregated with any other payments or benefits received by you, would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local income taxes and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments a “parachute payment” is necessary so that the Payment equals the Reduced Amount, such reduction shall occur in the following order unless order: first the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date cancellation of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of any stock awards; awards as to which no portion of the Aggregate Gross Proceeds would be payable, then the reduction of employee benefitsyour Success Fee and finally the cancellation of any other stock awards you hold at the time. In the event that acceleration of accelerated vesting of your stock award compensation awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s your stock awards unless the Executive elects you elect in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company Ambit for general audit tax purposes shall perform the foregoing calculations. The Company Ambit shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company Ambit within fifteen seven (157) calendar business days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the CompanyAmbit) or at such other earlier time as requested by the Executive you or the CompanyAmbit. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive you and the Company Ambit with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon you and Ambit. In the Executive event the payment of any amounts pursuant to this letter agreement would result in your being subject to an Excise Tax (without giving effect to any reduction in such payments to the Reduced Amount), at your request in your sole discretion, Ambit will use its commercially reasonable best efforts to obtain a vote of the stockholders of Ambit approving such payments in the manner set forth in Section 280G(b)(5)(B) of the Code and the CompanyTreasury Regulations issued thereunder such that the payments would not be subject to the Excise Tax if the required stockholder approval is obtained. In the event you so request that such a vote be taken, you agree to execute a waiver and enter into such additional agreements as may be reasonably requested by Ambit in relation thereto, including, without limitation, agreeing that the portion of such payments that would otherwise, if made, result in your becoming liable for the Excise Tax will not be made if the required stockholder approval is not obtained.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments; , (2) cancellation of accelerated vesting of stock equity awards; , and (3) reduction of employee benefits. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock equity awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. Alternatively, the Company may wish to retain its primary outside legal counsel to conduct said calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder. The accounting or law firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting or law firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If In the event that it shall be determined that any payment or distribution by the Company to or for the benefit the Executive would receive of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (each, a “Payment”) would: ), would (i) constitute a an “Parachute Paymentexcess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended amended, and the regulations promulagated thereunder (the “Code”); ) and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment Executive shall be reduced entitled, in lieu of such Payment, to a payment or distribution equal to the Reduced Modified Amount. The “Reduced Modified Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax (including all the “Base Amount”) or (y) the entire Payment plus an additional cash payment in an amount equal to the Partial Gross-Up Payment (as defined below), whichever of it(x) whichor (y), after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the receipt by Executive’s receipt, on an after-after tax basis, of the greatest greater amount of the Payment, whether or not notwithstanding that all or some portion of the Payment is Modified Amount may be subject to the Excise Tax. For purposes of this paragraph, the “Partial Gross-Up Payment” shall be an amount calculated such that, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in receipt by Executive, on an after tax basis, of an amount equal to one-half of the Excise Tax that would be imposed on the Payment if the full Payment were to be made to Executive without reference to this Section. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Base Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election Payments shall be subject reduced on a nondiscretionary basis in such a way as to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which minimize the reduction in the economic value deliverable to Executive’s payments or benefits will occur if such election would cause . Where more than one payment has the same value for this purpose and they are payable at different times they shall be reduced on a pro rata basis. Notwithstanding any such amounts provision of this Section 4.8 to constitute “nonqualified deferred compensation” within the meaning contrary, in accordance with the requirements of Section 409A of the Code such that and the Executive would incur the additional twenty percent regulations and other guidance thereunder and any state law of similar effect (20%) tax under collectively “Section 409A 409A”), any Partial Gross-Up Payment payable hereunder shall be paid not later than December 31 of the Code calendar year next following the calendar year in which Executive or the Company (as applicable) remits the “409A Tax”)taxes for which the Partial Gross-Up Payment is being paid. In addition, if a different order of reduction is required All determinations to avoid be made under this paragraph shall be made by the 409A Tax, that order shall apply. The independent public accounting firm then engaged used by Company immediately prior to the Company for general audit purposes shall perform the foregoing calculationsChange in Control event. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will shall be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If Notwithstanding any payment other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit the Executive would receive of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (eachthe “Payments”), a constitute “Payment”) would: excess parachute payments” (i) constitute a “Parachute Payment” within the meaning of as such term is defined under Section 280G of the Internal Revenue Code of 1986or any successor provision, as amended and the regulations promulgated thereunder (the collectively, “CodeSection 280G”); and (ii) but for this sentence, that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then such Payment the Payments shall be reduced either (a) delivered in full, or (b) delivered to the Reduced Amount. The “Reduced Amount” shall be equal to the largest such lesser extent that would result in no portion of the Payment (including all Payments being subject to the Excise Tax, whichever of it) whichthe foregoing amounts, after taking into account all the applicable federal, state and or local income and employment taxes (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the receipt by Executive’s receipt, on an after-tax basis, of the greatest amount of the Paymentbenefits, whether or not notwithstanding that all or some portion of the Payment is such benefits may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is the Payments are to be reducedreduced pursuant to this Section 9, such acceleration of vesting Payments shall be cancelled in reduced such that the reverse order reduction of the date compensation to be provided to Executive as a result of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellationthis Section 9 is minimized. Notwithstanding anything to the contrary set forth hereinIn applying this principle, the Executive may not elect reduction shall be made in a manner consistent with the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such that the Executive would incur the additional twenty percent amounts shall be reduced on a pro rata basis (20%) tax under Section 409A of the Code (the “409A Tax”but not below zero). In addition, if a different order of reduction is All calculations required pursuant to avoid the 409A Tax, that order this Section 9 shall apply. The accounting firm then engaged be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company for general audit purposes shall perform Company, and the foregoing calculations. The Company shall bear all expenses with respect to the determinations by fees and costs incurred in performing such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change in Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not greater economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for Executive. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Executive may not elect the order in which the reduction Reduced Amount is determined pursuant to clause (y) in the Executive’s payments or benefits preceding paragraph, Executive will occur if such election would cause have no obligation to return any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A portion of the Code such that Payment pursuant to the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall applypreceding sentence. The Company shall engage a nationally recognized accounting or consulting firm then to perform the foregoing calculations. If the firm so engaged by the Company is serving as accountant or auditor for general audit purposes the individual, entity or group effecting the Change in Control, then the Company shall perform appoint another nationally recognized accounting or consulting firm to make the foregoing calculationsdeterminations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit In the Executive would receive pursuant to event the benefits provided by this Agreement (each, a the “Payment”) would: ), when aggregated with any other payments or benefits received by you, would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local income taxes and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments a “parachute payment” is necessary so that the Payment equals the Reduced Amount, such reduction shall occur in the following order unless order: first the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date cancellation of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of any stock awards; awards as to which no portion of the Aggregate Gross Proceeds would be payable, then the reduction of employee benefitsyour Success Fee and finally the cancellation of any other stock awards you hold at the time. In the event that acceleration of accelerated vesting of your stock award compensation awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s your stock awards unless the Executive elects you elect in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company Ambit for general audit tax purposes shall perform the foregoing calculations. The Company Ambit shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company Ambit within fifteen seven (157) calendar business days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the CompanyAmbit) or at such other earlier time as requested by the Executive you or the CompanyAmbit. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive you and the Company Ambit with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon you and Ambit. In the Executive event the payment of any amounts pursuant to this Agreement would result in your being subject to an Excise Tax (without giving effect to any reduction in such payments to the Reduced Amount), at your request in your sole discretion, Ambit will use its commercially reasonable best efforts to obtain a vote of the stockholders of Ambit approving such payments in the manner set forth in Section 280G(b)(5)(B) of the Code and the CompanyTreasury Regulations issued thereunder such that the payments would not be subject to the Excise Tax if the required stockholder approval is obtained. In the event you so request that such a vote be taken, you agree to execute a waiver and enter into such additional agreements as may be reasonably requested by Ambit in relation thereto, including, without limitation, agreeing that the portion of such payments that would otherwise, if made, result in your becoming liable for the Excise Tax will not be made if the required stockholder approval is not obtained.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change in Control from the Company or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not greater economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for Executive. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined pursuant to clause (y) in the preceding paragraph, Executive will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless Executive and the Company agree on an alternative accounting firm or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting or law firm engaged to make the determinations hereunder shall to provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment“ Payment ”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the ““ Excise TaxTax ”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order order: (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): 1) reduction of cash payments; , (2) cancellation of accelerated vesting of stock equity awards; , and (3) reduction of employee benefits. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall applyequity awards. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, or is unwilling to perform this function, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit Notwithstanding anything in this Section 8 to the Executive would receive pursuant to this Agreement (eachcontrary, if you are a “Payment”Disqualified Individual” (as defined in Section 280G(c) would: of the Code) and the payment provided for in this Section 8, together with any other payments which you have the right to receive from the Company (iincluding without limitation the payments under Section 8.3 and the acceleration of vesting of equity awards under Company equity incentive plans) would constitute a “Parachute Payment” within the meaning of (as defined in Section 280G 280G(b)(2) of the Internal Revenue Code Code), the total amounts received by you from the Company which constitute Parachute Payments shall be reduced by the minimum amount necessary so that no portion of 1986, as amended (the “Code”); and (ii) but for this sentence, such amounts received by you shall be subject to the excise tax imposed by Section 4999 of the Code if and only if such reduction in the amount paid produces a better net after tax position (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax) than the total payment provided for herein. The determination as to whether and to what extent payments you have the right to receive from the Company are required to be reduced in accordance with the preceding sentence shall be made at the Company’s expense by a legal, accounting or consulting firm expert in such matters as appointed by the Company (the “Excise TaxOutside Firm”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion of the Payment (including all of it) which, after taking into account all applicable federal, state and local income and employment taxes (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, value of the greatest amount of the Payment, whether or not all or some portion of the Payment is subject any reasonable compensation for services to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on rendered by you before or after the effective date change in control, including under any agreement not to render services to competitors pursuant to any non-competition provisions that may apply to you to the extent permitted by Section 280G of the event that triggers Code and the Payment): reduction Company shall cooperate in the valuation of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsany such services, including any non-competition provisions. In the event that acceleration of vesting any underpayment or overpayment under this Agreement, as determined by the Outside Firm, the amount of stock award compensation is such underpayment or overpayment shall immediately be paid to you or refunded to the Company, as the case may be, with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. The payment reduction contemplated by this Section 8.7 shall be made by reducing, first, payments or benefits to be reduced, such acceleration of vesting shall be cancelled paid in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects cash hereunder in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments such payment would be paid or benefits will occur if provided (beginning with such election payment that would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentationlast in time and continuing, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Paymentextent necessary, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect through to such Payment. Any good faith determinations of the accounting firm payment that would be made first in time) and, then, reducing any payment to be provided in-kind hereunder shall be final, binding and conclusive upon the Executive and the Companyin a similar order.

Parachute Payment. If any payment or benefit In the Executive would receive pursuant to this Agreement (each, a “Payment”) would: event that (i) Employee becomes entitled to any payments or benefits hereunder or otherwise from the Company or any of its affiliates which constitute a “Parachute Paymentparachute payment” within the meaning of as defined in Code Section 280G of the Internal Revenue Code of 1986, as amended (the “CodeTotal Payments”); ) and (ii) but for this sentence, be Employee is subject to the an excise tax imposed by under Code Section 4999 of the Code (the “Excise Tax”), then such Payment then, if it would be economically advantageous for Employee, the Total Payments shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion of the Payment by an amount (including all of itzero) which, that results in the receipt by Employee on an after taking into account all tax basis (including the applicable U.S. federal, state and local income and employment taxes (all computed at the highest applicable marginal rate)taxes, and the Excise Tax) of the greatest Total Payments, notwithstanding that some or all of the portion of the Total Payments may be subject to the Excise Tax (it being understood that if applicableEmployee’s aggregate after tax benefit hereunder would be greater with the imposition of the Excise Tax and without such reduction, then no such reduction in Total Payments hereunder shall occur). If a reduction in Total Payments is required pursuant to the preceding sentence, the reduction will occur in the manner (the “Reduction Method”) that results in the Executive’s receiptgreatest economic benefit for Employee. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Total Payments being subject to taxes pursuant to Code Section 409A (as defined below) that would not otherwise be subject to taxes pursuant to Section 409A, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, will be modified so as to avoid the imposition of taxes pursuant to Section 409A as follows: (A) as a first priority, the modification will preserve to the greatest extent possible, the greatest economic benefit for Employee as determined on an after-tax basis; (B) as a second priority, of the greatest amount of the PaymentPayments that are contingent on future events (e.g., whether being terminated without Cause), will be reduced (or eliminated) before Payments that are not all or some portion of the Payment is subject to the Excise Tax. If contingent on future events; and (C) as a reduction in payments or benefits constituting Parachute third priority, Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute are “nonqualified deferred compensation” within the meaning of Section 409A will be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if 409A. All calculations hereunder shall be performed by a different order of reduction is required to avoid the 409A Tax, that order shall apply. The nationally recognized independent accounting firm then engaged selected by the Company for general audit purposes Company, who shall perform also determine the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required value of any services to be made hereunder. The accounting firm engaged rendered by Employee in connection with any non-competition or other restrictive covenant in order to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and mitigate any potential impact of Sections 280G/4999 on the Company within fifteen (15) calendar days after and Employee, with the date on which the Executive’s right to a Payment is triggered (if requested at that time full cost of such firm being borne by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting Any determinations made by such firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, final and binding and conclusive upon the Executive on Employee and the Company.

Parachute Payment. If any payment or benefit In the Executive would receive pursuant to this Agreement (each, a “Payment”) would: event that (i) Employee becomes entitled to any payments or benefits hereunder or otherwise from the Company or any of its affiliates which constitute a “Parachute Paymentparachute payment” within the meaning of as defined in Code Section 280G of the Internal Revenue Code of 1986, as amended (the “CodeTotal Payments”); ) and (ii) but for this sentence, be Employee is subject to the an excise tax imposed by under Code Section 4999 of the Code (the “Excise Tax”), then such Payment then, if it would be economically advantageous for Employee, the Total Payments shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion of the Payment by an amount (including all of itzero) which, that results in the receipt by Employee on an after taking into account all tax basis (including the applicable federal, state and local income and employment taxes (all computed at the highest applicable marginal rate)taxes, and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, ) of the greatest amount Total Payments, notwithstanding that some or all of the Payment, whether or not all or some portion of the Payment is Total Payments may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Total Payments is necessary so that required pursuant to the Payment equals preceding sentence, the Reduced Amount, reduction shall will occur in the following order unless manner (the Executive elects “Reduction Method”) that results in writing a different order the greatest economic benefit for Employee. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (providedthe “Pro Rata Reduction Method”). Notwithstanding the foregoing, however, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Total Payments being subject to taxes pursuant to Code Section 409A (as defined below) that such election shall would not otherwise be subject to Company approval if made on or after taxes pursuant to Section 409A, then the effective date Reduction Method and/or the Pro Rata Reduction Method, as the case may be, will be modified so as to avoid the imposition of taxes pursuant to Section 409A as follows: (A) as a first priority, the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything modification will preserve to the contrary set forth hereingreatest extent possible, the Executive may greatest economic benefit for Employee as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without Cause), will be reduced (or eliminated) before Payments that are not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute contingent on future events; and (C) as a third priority, Payments that are “nonqualified deferred compensation” within the meaning of Section 409A will be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if 409A. All calculations hereunder shall be performed by a different order of reduction is required to avoid the 409A Tax, that order shall apply. The nationally recognized independent accounting firm then engaged selected by the Company for general audit purposes shall perform Company, with the foregoing calculations. The Company shall bear all expenses with respect to the determinations full cost of such firm being borne by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting Any determinations made by such firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, final and binding and conclusive upon the Executive on Employee and the Company.

Parachute Payment. If any payment or benefit the Executive GC would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the ExecutiveGC’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for GC. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount (as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph) is subject to the Excise Tax, GC agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, GC will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless GC and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive GC and the Company within fifteen (15) 15 calendar days after the date on which the ExecutiveGC’s right to a Payment is triggered (if requested at that time by the Executive GC or the Company) or such other time as requested by the Executive GC or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change in Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not greater economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for Executive. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Executive may not elect the order in which the reduction Reduced Amount is determined pursuant to clause (y) in the Executive’s payments or benefits preceding paragraph, Executive will occur if such election would cause have no obligation to return any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A portion of the Code such that Payment pursuant to the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall applypreceding sentence. The Company shall engage a nationally recognized accounting or consulting firm then engaged by the Company for general audit purposes shall to perform the foregoing calculations. The Company shall bear all expenses with respect to If the determinations firm so engaged by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.serving as

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement Agreement, either alone or together with other payments and benefits provided to him by the Company (each, a the “PaymentTotal Payments”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment the Total Payments shall be reduced if and to the Reduced Amount. The “Reduced Amount” shall be equal to extent that a reduction in the largest portion Total Payments would result in Executive retaining a larger amount than if Executive received all of the Payment (including all of it) whichTotal Payments, after taking into account all applicable federal, state and local income and employment taxes (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, each case measured on an after-tax basisbasis (taking into account federal, of the greatest amount of the Paymentstate, whether or not all or some portion of the Payment is subject to and local income taxes, and, if applicable, the Excise Tax). The determination of any reduction in the Total Payments will be made at the Company’s expense by the Company’s independent public accountants or a law or consulting firm selected by the Company, applying reasonable, good faith interpretations regarding the applicability of Section 280G and Section 4999, along with any other applicable portions of the Code or other tax laws. If a reduction in payments or benefits constituting Parachute Payments the Total Payment is necessary so that the Payment equals the Reduced Amountnecessary, such reduction shall occur in the following order unless the Executive elects in writing a different order order: (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards other than stock options; (iii) cancellation of accelerated vesting of stock awardsoptions; and (iv) reduction of employee benefitsother benefits paid to Executive. Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A (as defined in Section 4.9 below) and then with respect to amounts that are. In the event that acceleration of vesting of stock award compensation from Executive’s equity awards is to be reduced, such acceleration of vesting shall be cancelled canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Companygrant.

Parachute Payment. If any payment or benefit the Executive CSO would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the ExecutiveCSO’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for CSO. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount (as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph) is subject to the Excise Tax, CSO agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, CSO will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless CSO and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive CSO and the Company within fifteen (15) 15 calendar days after the date on which the ExecutiveCSO’s right to a Payment is triggered (if requested at that time by the Executive CSO or the Company) or such other time as requested by the Executive CSO or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive you would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, the reduction shall occur in the following order unless the Executive elects you elect in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments; , (2) cancellation of accelerated vesting of stock equity awards; , and (3) reduction of employee benefits. In the event that the acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall be cancelled canceled in the reverse order of the date of grant of the Executive’s stock your equity awards unless the Executive elects you elect in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. Alternatively, the Company may wish to retain its primary outside legal counsel to conduct said calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity, or group affecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder. The accounting or law firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company within fifteen (15) calendar days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the Company) or such other time as requested by the Executive you or the Company. If the accounting or law firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive you and the Company with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding binding, and conclusive upon the Executive you and the Company.

Parachute Payment. If any payment or benefit the Executive CMO would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the ExecutiveCMO’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for CMO. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount (as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph) is subject to the Excise Tax, CMO agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, CMO will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless CMO and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive CMO and the Company within fifteen (15) 15 calendar days after the date on which the ExecutiveCMO’s right to a Payment is triggered (if requested at that time by the Executive CMO or the Company) or such other time as requested by the Executive CMO or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive Advisor would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the ExecutiveAdvisor’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order order: (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards other than stock options; (iii) cancellation of accelerated vesting of stock awardsoptions; and (iv) reduction of employee benefitsother benefits paid to Advisor. Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A (as defined in Section 4.9 below) and then with respect to amounts that are. In the event that acceleration of vesting of stock award compensation from Advisor’s equity awards is to be reduced, such acceleration of vesting shall be cancelled canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant grant. In the event it is subsequently determined by the Internal Revenue Service that some portion of the Executive’s stock awards unless Reduced Amount (as determined pursuant to clause (x) in the Executive elects in writing a different order for cancellation. Notwithstanding anything preceding paragraph) is subject to the contrary set forth hereinExcise Tax, Advisor agrees to promptly return to the Company a sufficient amount of the Payment so that no portion of the Reduced Amount is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, Advisor will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless Advisor and the Company agree on an alternative accounting, law or consulting firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive Advisor and the Company within fifteen (15) calendar days after the date on which the ExecutiveAdvisor’s right to a Payment is triggered (if requested at that time by the Executive Advisor or the Company) or such other time as requested by the Executive Advisor or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for 9. this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): order: reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall applyawards. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all of ity) whichthe full Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that pursuant to the Payment equals the Reduced Amountpreceding sentence, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): order: reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall applyawards. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company, except as set forth below. If, notwithstanding any reduction described in this Section 5.3, the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of the payment of benefits as described above, then the Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that the Executive challenges the final IRS determination, a final judicial determination, a portion of the payment equal to the “Repayment Amount.” The Repayment Amount with respect to the payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that the Executive’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) shall be 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 Executive’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 paragraph, the Executive shall pay the Excise Tax. Notwithstanding any other provision of this Section 5.3, if (i) there is a reduction in the payment of benefits as described in this section, (ii) the IRS later determines that the Executive is liable for the Excise Tax, the payment of which would result in the maximization of the Executive’s net after-tax proceeds (calculated as if the Executive’s benefits had not previously been reduced), and (iii) the Executive pays the Excise Tax, then the Company shall pay to the Executive those benefits which were reduced pursuant to this section contemporaneously or as soon as administratively possible after the Executive pays the Excise Tax so that the Executive’s net after-tax proceeds with respect to the payment of benefits is maximized.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments; , (2) cancellation of accelerated vesting of stock equity awards; , and (3) reduction of employee benefits. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock equity awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, or is unwilling to perform this function, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting or law firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any the payment of the Total Payments (as defined below) will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code, the Company shall pay Executive on or benefit before the Executive would receive pursuant to this Agreement tenth day following the Change in Control, an additional amount (each, a the “Gross-Up Payment”) wouldsuch that the net amount retained by Executive, after deduction of any Excise Tax on Total Payments and any federal and state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to the Total Payments. For purposes of determining whether any of the payments will be subject to the Excise Tax and the amount of such Excise Tax: (iA) constitute any payments or benefits received or to be received by Executive in connection with a Change in Control of the Company or Executive’s termination of employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, its successors, any person whose actions result in a Change in Control of the Company or any corporation affiliated or which, as a result of the completion of transaction causing such a Change in Control, will become affiliated with the Company within the meaning of Section 1504 of Code (the “Parachute PaymentTotal Payments”) shall be treated as “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion of the Payment (including all of it) which, after taking into account all applicable federal, state and local income and employment taxes (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not all or some portion of the Payment is subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash “excess parachute payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A 280G(b)(1) shall be treated as subject to the Excise Tax, unless, in the opinion of tax counsel selected by the Company’s independent auditors and acceptable to Executive, the Total Payments (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A either in their entirety or in excess of the Code (base amount within the “409A Tax”). In additionmeaning of Section 280G(b)(3) of the Code, if a different order of reduction is required or are otherwise not subject to avoid the 409A Excise Tax, (B) the amount of the Total Payments that order shall apply. The accounting firm then engaged be treated as subject to the Excise Tax shall be equal to the lesser of (I) the total amount of the Total Payments or (II) the amount of excess parachute payments or benefit shall be determined by the Company for general audit Company’s independent auditors in accordance with the principles of Section 280G of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall perform be deemed to pay federal income taxes at the foregoing calculations. The Company shall bear all expenses with respect to highest marginal rate of federal income taxation in the determinations by such accounting firm required calendar year in which the Gross-Up Payment is to be made hereunder. The accounting firm engaged to make and state and local income taxes at the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to highest marginal rate of taxation in the Executive state and the Company within fifteen (15) calendar days after the date on which the locality of Executive’s right to a Payment is triggered (if requested at that time by residence on the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a PaymentChange in Control, either before or after the application net of the Reduced Amount, it shall furnish the Executive maximum reduction in federal income taxes which could be obtained from deduction of such state and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Companylocal taxes.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement Agreement, any other agreement or arrangement or otherwise (each, a “Payment”"PAYMENT") would: would (i) constitute a “Parachute Payment” "PARACHUTE PAYMENT" within the meaning of Code Section 280G of the Internal Revenue Code of 1986G, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”"EXCISE TAX"), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” "REDUCED AMOUNT" shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s 's receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments "PARACHUTE PAYMENTS" is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s 's stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The An accounting firm then engaged agreed upon by the Company for general audit purposes and the Executive shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive Officer would receive pursuant to this Agreement a Change in Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the ExecutiveOfficer’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not greater economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for Officer. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event that acceleration of vesting of stock award compensation it is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged subsequently determined by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at Internal Revenue Service that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application some portion of the Reduced AmountAmount as determined pursuant to clause (x) in the preceding paragraph is subject to the Excise Tax, it shall furnish the Executive and Officer agrees to promptly return to the Company with an opinion reasonably acceptable a sufficient amount of the Payment so that no portion of the Reduced Amount is subject to the Executive that Excise Tax. For the avoidance of doubt, if the Reduced Amount is determined pursuant to clause (y) in the preceding paragraph, Officer will have no Excise Tax will be imposed with respect obligation to such Payment. Any good faith determinations return any portion of the accounting firm made hereunder shall be final, binding and conclusive upon Payment pursuant to the Executive and the Companypreceding sentence.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change in Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything The Company shall engage a nationally recognized accounting or consulting firm to perform the contrary set forth herein, foregoing calculations. If the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then so engaged by the Company is serving as accountant or auditor for general audit purposes the individual, entity or group effecting the Change in Control, then the Company shall perform appoint another nationally recognized accounting or consulting firm to make the foregoing calculationsdeterminations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): order: reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall applyawards. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive Employee would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the ExecutiveEmployee’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order order: (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards other than stock options; (iii) cancellation of accelerated vesting of stock awardsoptions; and (iv) reduction of employee benefitsother benefits paid to Employee. Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A (as defined in Section 4.9 below) and then with respect to amounts that are. In the event that acceleration of vesting of stock award compensation from Employee’s equity awards is to be reduced, such acceleration of vesting shall be cancelled canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant grant. In the event it is subsequently determined by the Internal Revenue Service that some portion of the Executive’s stock awards unless Reduced Amount (as determined pursuant to clause (x) in the Executive elects in writing a different order for cancellation. Notwithstanding anything preceding paragraph) is subject to the contrary set forth hereinExcise Tax, Employee agrees to promptly return to the Company a sufficient amount of the Payment so that no portion of the Reduced Amount is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, Employee will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless Employee and the Company agree on an alternative accounting, law or consulting firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive Employee and the Company within fifteen (15) calendar days after the date on which the ExecutiveEmployee’s right to a Payment is triggered (if requested at that time by the Executive Employee or the Company) or such other time as requested by the Executive Employee or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment“ Payment ”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the ““ Excise TaxTax ”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments; , (2) cancellation of accelerated vesting of stock equity awards; , and (3) reduction of employee benefits. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock equity awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, or is unwilling to perform this function, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting or law firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the ““ Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments; , (2) cancellation of accelerated vesting of stock equity awards; , and (3) reduction of employee benefits. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock equity awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, or is unwilling to perform this function, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting or law firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): order: reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall applyawards. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company the Companies’ approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The An accounting firm then engaged by either of the Company Companies for general audit purposes shall perform the foregoing calculations. The Company Companies shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company Companies within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the CompanyCompanies) or such other time as requested by the Executive or the CompanyCompanies. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company Companies with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the CompanyCompanies.

Parachute Payment. If any payment or benefit the Executive would receive pursuant Executive's employment is terminated due to this Agreement (each, a “Payment”) would: (i) constitute the occurrence of a “Change of Control of the Company; or (ii) the termination by the Executive of his employment with the Company as a result of the Company's material breach hereof, then in any such event (an "Event of Termination"), then (A) the Company shall pay to the Executive in a lump sum payment (a "Parachute Payment” within ") on the meaning effective date of Section the termination of the Executive's Employment (the "Termination Date") an amount equal to the sum of three times the Executive's annualized includible compensation for the base period, as such may be defined in /section/ 280G of the Internal Revenue Code code of 1986, as amended (or the “regulations promulgated thereunder) (the "Code”") minus one dollar (it being the intent of this provision that the Executive receive the maximum compensation payable under the Code in such circumstances that is deductible to the Company and which does not trigger the excise tax contemplated by the Code for excess parachute payments); and (iiB) but the Company shall maintain in full force and effect, at the Company's sole expense (pursuant to waiver of COBRA premiums or otherwise) and for this sentencethe Executive's continued benefit until one year after the Termination Date all life insurance, be subject medical, health and accident, and disability plans and similar arrangements in which the Executive was entitled to participate immediately prior to the excise tax imposed by Section 4999 Event of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion of the Payment (including all of it) which, after taking into account all applicable federal, state and local income and employment taxes (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not all or some portion of the Payment is subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsTermination. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless 's participation in any such plan or program is barred by the plans or programs, the Company shall arrange to provide the Executive elects with benefits, at the Company's sole expense, substantially similar to those to which the Executive is entitled under such plans and programs. The Executive shall not be required to mitigate the amount of any payment provided for in writing a different order this Section by seeking other employment or otherwise, nor shall the amount of any payment provided for cancellation. Notwithstanding anything to in this Section be reduced by any compensation earned by the contrary set forth hereinExecutive as the result of employment by another employer after the Termination Date or otherwise; however, the Executive may shall have the right (but not elect the order obligation) to voluntarily reduce the consideration payable to him upon a Change in which the reduction Control, in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that manner the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required may elect by written notice to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change in Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. (a) If prior to or on the 24-month anniversary of the Prior Agreement Date any payment or benefit the Executive would receive pursuant to this Agreement receives (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced grossed up (using the highest marginal tax rates then in effect) such that Executive will receive the same amount after imposition of the Excise Tax as Executive would have received had the Excise Tax not been imposed (and had any such gross up not been made) (such additional payment, the “Gross-Up Payment”). (b) If, following the 24-month anniversary of the Prior Agreement Date, the Executive receives a Payment that would (i) constitute a Parachute Payment, and (ii) but for this sentence, be subject to the Excise Tax, then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, Executive elects in writing a different order (provided, however, that such election shall be subject will have no obligation to Company approval if made on or after the effective date return any portion of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Payment pursuant to the contrary set forth hereinpreceding sentence. Unless Executive and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the foregoing determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting firm engaged In all events, all Excise Tax calculations will be subject to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive reasonable review and the Company within fifteen (15) calendar days after the date on which the comment by Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive personal legal and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Companytax advisors.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.NuZee Management Contract - Satoru Yukie

Parachute Payment. If In the event the benefits provided by this Agreement, when aggregated with any payment other payments or benefit the Executive benefits received by you, would receive pursuant to this Agreement (each, a “Payment”) would: (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects you elect in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s your stock awards unless the Executive elects you elect in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company within fifteen (15) calendar days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the Company) or such other time as requested by the Executive you or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.the

Parachute Payment. If any payment or benefit In the Executive would receive pursuant to this Agreement (each, a “Payment”) would: event that (i) Employee becomes entitled to any payments or benefits hereunder or otherwise from the Company or any of its affiliates which constitute a “Parachute Payment” within the meaning of "parachute payment" as defined in Code Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); "Total Payments") and (ii) but for this sentence, be Employee is subject to the an excise tax imposed by under Code Section 4999 of the Code (the “"Excise Tax”"), then such Payment then, if it would be economically advantageous for Employee, the Total Payments shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion of the Payment by an amount (including all of itzero) which, that results in the receipt by Employee on an after taking into account all tax basis (including the applicable U.S. federal, state and local income and employment taxes (all computed at the highest applicable marginal rate)taxes, and the Excise Tax) of the greatest Total Payments, notwithstanding that some or all of the portion of the Total Payments may be subject to the Excise Tax (it being understood that if applicableEmployee's aggregate after tax benefit hereunder would be greater with the imposition of the Excise Tax and without such reduction, then no such reduction in Total Payments hereunder shall occur). If a reduction in Total Payments is required pursuant to the preceding sentence, the reduction will occur in the manner (the "Reduction Method") that results in the Executive’s receiptgreatest economic benefit for Employee. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Total Payments being subject to taxes pursuant to Code Section 409A (as defined below) that would not otherwise be subject to taxes pursuant to Section 409A, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, will be modified so as to avoid the imposition of taxes pursuant to Section 409A as follows: (A) as a first priority, the modification will preserve to the greatest extent possible, the greatest economic benefit for Employee as determined on an after-tax basis; (B) as a second priority, of the greatest amount of the PaymentPayments that are contingent on future events (e.g., whether being terminated without Cause), will be reduced (or eliminated) before Payments that are not all or some portion of the Payment is subject to the Excise Tax. If contingent on future events; and (C) as a reduction in payments or benefits constituting Parachute third priority, Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified are "deferred compensation” " within the meaning of Section 409A will be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if 409A. All calculations hereunder shall be performed by a different order of reduction is required to avoid the 409A Tax, that order shall apply. The nationally recognized independent accounting firm then engaged selected by the Company for general audit purposes Company, who shall perform also determine the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required value of any services to be made hereunder. The accounting firm engaged rendered by Employee in connection with any non-competition or other restrictive covenant in order to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and mitigate any potential impact of Sections 2808/4999 on the Company within fifteen (15) calendar days after and Employee, with the date on which the Executive’s right to a Payment is triggered (if requested at that time full cost of such firm being borne by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting Any determinations made by such firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, final and binding and conclusive upon the Executive on Employee and the Company.

Parachute Payment. If any payment or benefit the Executive you would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), Xxxxx Xxxxxx October 18, 2007 then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects you elect in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s your stock awards unless the Executive elects you elect in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company within fifteen (15) calendar days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the Company) or such other time as requested by the Executive you or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive you and the Company with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive you and the Company.

Parachute Payment. If any payment or benefit the Executive Employee would receive pursuant to this Agreement or otherwise in connection with a change in control of the Company (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced AmountAmount (as defined herein). The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the ExecutiveEmployee’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order order: (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): 1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock awardsoptions; and (4) reduction of employee benefitsother benefits paid to the Employee. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the ExecutiveEmployee’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall applyawards. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive Employee and the Company within fifteen (15) calendar days after the date on which the ExecutiveEmployee’s right to a Payment is triggered (if requested at that time by the Executive Employee or the Company) or such other time as requested by the Executive Employee or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive Employee and the Company with an opinion reasonably acceptable to the Executive Employee that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive Employee and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for you. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount (as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph) is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, Executive will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless Executive and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order order: (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards other than stock options; (iii) cancellation of accelerated vesting of stock awardsoptions; and (iv) reduction of employee benefitsother benefits paid to Executive. Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A (as defined in Section 4.9 below) and then with respect to amounts that are. In the event that acceleration of vesting of stock award compensation from Executive’s equity awards is to be reduced, such acceleration of vesting shall be cancelled canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”)grant. In addition, if a different order of reduction the event it is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged subsequently determined by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at Internal Revenue Service that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application some portion of the Reduced AmountAmount (as determined pursuant to clause (x) in the preceding paragraph) is subject to the Excise Tax, it shall furnish the Executive and agrees to promptly return to the Company with an opinion reasonably acceptable a sufficient amount of the Payment so that no portion of the Reduced Amount is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, Executive that will have no Excise Tax will be imposed with respect obligation to such Payment. Any good faith determinations return any portion of the accounting firm made hereunder shall be final, binding and conclusive upon Payment pursuant to the Executive and the Companypreceding sentence.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change in Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not greater economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for Executive. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event that acceleration of vesting of stock award compensation it is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged subsequently determined by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at Internal Revenue Service that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application some portion of the Reduced AmountAmount as determined pursuant to clause (x) in the preceding paragraph is subject to the Excise Tax, it shall furnish the Executive and agrees to promptly return to the Company with an opinion reasonably acceptable a sufficient amount of the Payment so that no portion of the Reduced Amount is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount is determined pursuant to clause (y) in the preceding paragraph, Executive that will have no Excise Tax will be imposed with respect obligation to such Payment. Any good faith determinations return any portion of the accounting firm made hereunder shall be final, binding and conclusive upon Payment pursuant to the Executive and the Companypreceding sentence.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for Executive. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount (as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph) is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, Executive will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless Executive and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) 15 calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.at

Parachute Payment. If In the event that any payment of the payments and benefits provided for in this Agreement or benefit otherwise payable to the Executive would receive pursuant to this Agreement (each, a “280G Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then any such 280G Payment pursuant to this Agreement (a “Payment”) shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (i) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (ii) the largest portion, up to and including all the total, of itthe Payment, whichever amount (i.e., the amount determined by clause (i) whichor by clause (ii)), after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the receipt by Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not greater economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments a Payment is necessary so that required pursuant to the Payment equals preceding sentence and the Reduced AmountAmount is determined pursuant to clause (x) of the preceding sentence, the reduction shall occur in the following order unless manner (the Executive elects “Reduction Method”) that results in writing a different order the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (providedthe “Pro Rata Reduction Method”). Notwithstanding the foregoing, however, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A that such election shall would not otherwise be subject to Company approval if made on or after taxes pursuant to Section 409A, then the effective date of Reduction Method and/or the event that triggers Pro Rata Reduction Method, as the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reducedcase may be, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required modified so as to avoid the imposition of taxes pursuant to Section 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.as

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement Agreement, any other agreement or arrangement or otherwise (each, a “Payment”"PAYMENT") would: would (i) constitute a “Parachute Payment” "PARACHUTE PAYMENT" within the meaning of Code Section 280G of the Internal Revenue Code of 1986G, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”"EXCISE TAX"), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” "REDUCED AMOUNT" shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s 's receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments "PARACHUTE PAYMENTS" is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.award

Parachute Payment. If any payment or benefit the Executive CFO would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the ExecutiveCFO’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some sonic portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for CFO. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount (as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph) is subject to the Excise Tax, CFO agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, CFO will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless CFO and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Cite Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder, The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive CFO and the Company within fifteen (15) 15 calendar days after the date on which the ExecutiveCFO’s right to a Payment is triggered (if requested at that time by the Executive CFO or the Company) or such other time as requested by the Executive CFO or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive you would receive pursuant to this Agreement a change of control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects you elect in writing a different order (provided, however, that such election shall be subject to Parent and/or Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s your stock awards unless the Executive elects you elect in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company Parent for general audit purposes as of the day prior to the effective date of the change of control shall perform the foregoing calculations. If the accounting firm so engaged by the Parent is serving as accountant or auditor for the individual, entity or group effecting the change of control, then the Parent shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company Parent shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company Parent within fifteen (15) calendar days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the CompanyParent) or such other time as requested by the Executive you or the CompanyParent. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive you and the Company Parent with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive you and the CompanyParent.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “"Payment”") would: would (i) constitute a “Parachute Payment” "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then such Payment shall be reduced to the Reduced Amount. The “"Reduced Amount” " shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s 's receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments "parachute payments" is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s 's stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall bear all expenses with respect to the determinations by such appoint a nationally recognized accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Companyrequired hereunder. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.The

Parachute Payment. If any payment or benefit In the Executive would receive pursuant to event that the severance and other benefits provided for in this Agreement (each, a “Payment”) would: or otherwise payable or provided to Executive (i) constitute a “Parachute Paymentparachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentenceSection 9, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment the Executive’s benefits shall be reduced either (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion Excise Tax, whichever of the Payment (including all of it) whichforegoing amounts, after taking into account all the applicable federal, state and local income and employment taxes (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, receipt by the Executive on an after-tax basis, of the greatest amount of the Paymentbenefits, whether or not notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Payment is subject to Code. Unless the Excise Tax. If a reduction Company and Executive otherwise agree in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amountwriting, reduction shall occur in the following order unless the Executive elects any determination required under this Section 9 will be made in writing by a different order (provided, however, that national “Big Four” accounting firm selected by the Company or such election shall be subject other person or entity to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code parties mutually agree (the “409A TaxAccountants”). In addition, if a different order of reduction is required to avoid whose determination will be conclusive and binding upon the 409A Tax, that order shall apply. The accounting firm then engaged by Executive and the Company for general audit all purposes. For purposes of making the calculations required by this Section 9, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive shall perform furnish to the foregoing calculationsAccountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect any calculations contemplated by this Section 9. Any reduction in payments and/or benefits required by this Section 9 shall occur in the following order: (1) any cash payments, (2) any taxable benefits, (3) any nontaxable benefits, and (4) any vesting of equity awards, in each case to the determinations by such accounting firm required extent necessary to be made hereundermaximize the retained payments. The accounting firm engaged to make the determinations hereunder Accountants shall provide its their calculations, together with detailed supporting documentation, to the Company and Executive and the Company within fifteen thirty (1530) calendar days after the date on which the Executive’s right Accountants have been engaged to a Payment is triggered (if requested at that time by the Executive or the Company) make such determinations or such other time as requested by the Executive Company or the CompanyExecutive. If the accounting firm determines Accountants determine that no Excise Tax is payable with respect to a Payment, either before payment or after the application of the Reduced Amountbenefit, it shall furnish the Company and Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Paymentpayment or benefit. Any good faith determinations determination of the accounting firm Accountants made hereunder shall be final, binding and conclusive upon the Executive Company and the CompanyExecutive.

Parachute Payment. If In the event that it shall be determined that any payment or distribution by the Company to or for the benefit the Executive would receive of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (eacha "Payment"), a “Payment”) would: would (i) constitute a “Parachute Payment” an "excess parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended amended, and the regulations promulagated thereunder (the “"Code”); ") and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then such Payment Executive shall be reduced entitled, in lieu of such Payment, to a payment or distribution equal to the Reduced Modified Amount. The “Reduced "Modified Amount” " shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax (including all the "Base Amount") or (y) the entire Payment plus an additional cash payment in an amount equal to the Partial Gross-Up Payment (as defined below), whichever of it(x) whichor (y), after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the receipt by Executive’s receipt, on an after-after tax basis, of the greatest greater amount of the Payment, whether or not notwithstanding that all or some portion of the Payment is Modified Amount may be subject to the Excise Tax. For purposes of this paragraph, the "Partial Gross-Up Payment" shall be an amount calculated such that, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in receipt by Executive, on an after tax basis, of an amount equal to one-half of the Excise Tax that would be imposed on the Payment if the full Payment were to be made to Executive without reference to this Section. If a reduction in payments or benefits constituting Parachute Payments "parachute payments" is necessary so that the Payment equals the Reduced Base Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election Payments shall be subject reduced on a nondiscretionary basis in such a way as to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which minimize the reduction in the economic value deliverable to Executive’s payments or benefits will occur if such election would cause . Where more than one payment has the same value for this purpose and they are payable at different times they shall be reduced on a pro rata basis. Notwithstanding any such amounts provision of this Section 4.8 to constitute “nonqualified deferred compensation” within the meaning contrary, in accordance with the requirements of Section 409A of the Code such that and the Executive would incur the additional twenty percent regulations and other guidance thereunder and any state law of similar effect (20%) tax under collectively "Section 409A 409A"), any Partial Gross-Up Payment payable hereunder shall be paid not later than December 31 of the Code calendar year next following the calendar year in which Executive or the Company (as applicable) remits the “409A Tax”)taxes for which the Partial Gross-Up Payment is being paid. In addition, if a different order of reduction is required All determinations to avoid be made under this paragraph shall be made by the 409A Tax, that order shall apply. The independent public accounting firm then engaged used by Company immediately prior to the Company for general audit purposes shall perform the foregoing calculationsChange in Control event. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s 's right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will shall be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit In the Executive would receive pursuant to event the benefits provided by this Agreement agreement (each, a the “Payment”) would: ), when aggregated with any other payments or benefits received by you, would (i1) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); ) and (ii2) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)) , then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion , up to and including all the total , of it) whichthe Payment , whichever amount, after taking into account all applicable federal, state and local income taxes and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments a “parachute payment” is necessary so that the Payment equals the Reduced Amount, such reduction shall occur in the following order unless order: first the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date cancellation of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of any stock awards; , then the reduction of employee other benefits. In the event that acceleration of accelerated vesting of your stock award compensation awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s your stock awards unless the Executive elects you elect in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company within fifteen (15) calendar seven business days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the Company) or at such other earlier time as requested by the Executive you or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either xxxxxxxxx.xxx • Aeglea Biotherapeutics • 000 XxXxx Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 • (000) 000-0000 before or after the application of the Reduced Amount, it shall furnish the Executive you and the Company with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive you and the Company. In the event the payment of any amounts pursuant to this agreement would result in your being subject to an Excise Tax (without giving effect to any reduction in such payments to the Reduced Amount), at your request in your sole discretion, the Company will use its commercially reasonable best efforts to obtain a vote of the stockholders of the Company approving such payments in the manner set forth in Section 280G(b)(5)(B) of the Code and the Treasury Regulations issued thereunder such that the payments would not be subject to the Excise Tax if the required stockholder approval is obtained. In the event you so request that such a vote be taken, you agree to execute a waiver and enter into such additional agreements as may be reasonably requested by the Company in relation thereto, including, without limitation, agreeing that the portion of such payments that would otherwise, if made, result in your becoming liable for the Excise Tax will not be made if the required stockholder approval is not obtained.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a ( “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for Executive. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount (as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph) is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, Executive will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless Executive and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) 15 calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive you would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Company will use commercially reasonable efforts to obtain shareholder approval for such payment in accordance with Section 280G(b)(5) and its regulations, if applicable (subject to your agreement to waive all amounts that would otherwise constitute “excess parachute payments” (within the meaning of Section 280G) prior to any applicable shareholder vote). If a shareholder vote with respect to the Parachute Payment is not solicited, then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Xxxx Xxxxx April 26, 2013 Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects you elect in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s your stock awards unless the Executive elects you elect in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company within fifteen (15) calendar days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the Company) or such other time as requested by the Executive you or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive you and the Company with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive you and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant Executive's employment is terminated due to this Agreement (each, a “Payment”) would: (i) constitute the occurrence of a “Change of Control of the Company; or (ii) the termination by the Executive of his employment with the Company as a result of the Company's material breach hereof, then in any such event (an "Event of Termination"), then (A) the Company shall pay to the Executive in a lump sum payment (a "Parachute Payment” within ") on the meaning effective date of Section the termination of the Executive's Employment (the "Termination Date") an amount equal to the sum of three times the Executive's annualized includible compensation for the base period, as such may be defined in ss. 280G of the Internal Revenue Code code of 1986, as amended (or the “regulations promulgated thereunder) (the "Code”)") minus one dollar (it being the intent of this provision that the Executive receive the maximum compensation payable under the Code in such circumstances that is deductible to the Company and which does not trigger the excise tax contemplated by the Code for excess parachute payments) ; and (iiB) but the Company shall maintain in full force and effect, at the Company's sole expense (pursuant to waiver of COBRA premiums or otherwise) and for this sentencethe Executive's continued benefit until one year after the Termination Date all life insurance, be subject medical, health and accident, and disability plans and similar arrangements in which the Executive was entitled to participate immediately prior to the excise tax imposed by Section 4999 Event of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to the largest portion of the Payment (including all of it) which, after taking into account all applicable federal, state and local income and employment taxes (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not all or some portion of the Payment is subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsTermination. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless 's participation in any such plan or program is barred by the plans or programs, the Company shall arrange to provide the Executive elects with benefits, at the Company's sole expense, substantially similar to those to which the Executive is entitled under such plans and programs. The Executive shall not be required to mitigate the amount of any payment provided for in writing a different order this Section by seeking other employment or otherwise, nor shall the amount of any payment provided for cancellation. Notwithstanding anything to in this Section be reduced by any compensation earned by the contrary set forth hereinExecutive as the result of employment by another employer after the Termination Date or otherwise; however, the Executive may shall have the right (but not elect the order obligation) to voluntarily reduce the consideration payable to him upon a Change in which the reduction Control, in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that manner the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required may elect by written notice to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive you would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects you elect in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s your stock awards unless the Executive elects you elect in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive you and the Company within fifteen (15) calendar days after the date on which the Executive’s your right to a Payment is triggered (if requested at that time by the Executive you or the Company) or such other time as requested by the Executive you or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive you and the Company with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive you and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall will be reduced to the Reduced AmountAmount (as defined in this paragraph). The “Reduced Amount” shall will be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (including all y) the largest portion of it) whichthe Payment, which such amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall will occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall will be subject to Company Employer approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments; cancellation of accelerated vesting of stock awards; and then (2) reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company Employer for general audit purposes shall will perform the foregoing calculationscalculations upon request of the Executive at the time a Parachute Payment becomes due and payable. The Company shall Employer will bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall will provide its calculations, together with detailed supporting documentation, to the Executive and the Company Employer within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the CompanyEmployer) or such other time as requested by the Executive or the CompanyEmployer. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall will furnish the Executive and the Company Employer with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall will be final, binding and conclusive upon the Executive and the CompanyEmployer.

Parachute Payment. If In the event the benefits provided by this Agreement, when aggregated with any payment other payments or benefit the Executive benefits received by you, would receive pursuant to this Agreement (each, a “Payment”) would: (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth hereinXxxxxx Xxxx June 20, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. 2007 The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement (each, a “Payment”) would: would (i) constitute a “Parachute Payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); , and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless manner that results in the Executive elects greatest economic benefit for you. If more than one method of reduction will result in writing a different order (providedthe same economic benefit, however, that such election shall the items so reduced will be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefitsreduced pro rata. In the event it is subsequently determined by the Internal Revenue Service that acceleration some portion of vesting of stock award compensation is the Reduced Amount (as determined pursuant to be reduced, such acceleration of vesting shall be cancelled clause (x) in the reverse order preceding paragraph) is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the date of grant Payment so that no portion of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything Reduced Amount is subject to the contrary set forth hereinExcise Tax. For the avoidance of doubt, if the Reduced Amount is determined in accordance with clause (y) in the preceding paragraph, Executive will have no obligation to return any portion of the Payment pursuant to the preceding sentence. Unless Executive and the Company agree on an alternative accounting or law firm, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit tax compliance purposes shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting, law or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting accounting, law or consulting firm required to be made hereunder. The accounting Company shall use commercially reasonable efforts such that the accounting, law or consulting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

Parachute Payment. If Executive is strongly encouraged to review the following provision and consult with his or her tax and financial advisor concerning the application of any payment personal tax consequences related to any payments provided for under this Agreement and the following provision. In the event that any of the payments and benefits provided for in this Agreement or benefit otherwise payable to the Executive would receive pursuant to this Agreement (each, a “280G Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this 6. sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then any such 280G Payment pursuant to this Agreement (a “Payment”) shall be reduced equal to the Reduced Amount. The “Reduced Amount” shall be equal to either (i) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (ii) the largest portion, up to and including all the total, of itthe Payment, whichever amount (i.e., the amount determined by clause (i) whichor by clause (ii)), after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the receipt by Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment, whether or not greater economic benefit notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments a Payment is necessary so that required pursuant to the Payment equals preceding sentence and the Reduced AmountAmount is determined pursuant to clause (x) of the preceding sentence, the reduction shall occur in the following order unless manner (the Executive elects “Reduction Method”) that results in writing a different order the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (providedthe “Pro Rata Reduction Method”). Notwithstanding the foregoing, however, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A that such election shall would not otherwise be subject to Company approval if made on or after taxes pursuant to Section 409A, then the effective date of Reduction Method and/or the event that triggers Pro Rata Reduction Method, as the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reducedcase may be, such acceleration of vesting shall be cancelled in modified so as to avoid the reverse order imposition of taxes pursuant to Section 409A as follows: (A) as a first priority, the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything modification shall preserve to the contrary set forth hereingreatest extent possible, the greatest economic benefit for Executive may as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute contingent on future events; and (C) as a third priority, Payments that are “nonqualified deferred compensation” within the meaning of Section 409A shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A. Unless the Code such that Company and the Executive would incur otherwise agree in writing, any determination required under this Section 8 shall be made in writing by independent public accountants appointed by the additional twenty percent (20%) tax under Section 409A of Company and reasonably acceptable to the Code Executive (the “409A TaxAccountants”). In addition, if a different order of reduction is required to avoid whose determination shall be conclusive and binding upon the 409A Tax, that order shall apply. The accounting firm then engaged by Executive and the Company for general audit purposes shall perform the foregoing calculationsall purposes. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculationsdetermination, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by and the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect Accountants such information and documents as the Accountants may reasonably request in order to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Companymake a determination under this Section 8.

Parachute Payment. If any payment or benefit the Executive would receive pursuant to this Agreement a Change of Control or otherwise (each, a “Payment”) would: would (i) constitute a “Parachute Paymentparachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be equal to either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including all the total, of it) whichthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), and the Excise Tax, if applicable, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment, whether or not Payment notwithstanding that all or some portion of the Payment is may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. Notwithstanding anything to the contrary set forth herein, the Executive may not elect the order in which the reduction in the Executive’s payments or benefits will occur if such election would cause any such amounts to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code such that the Executive would incur the additional twenty percent (20%) tax under Section 409A of the Code (the “409A Tax”). In addition, if a different order of reduction is required to avoid the 409A Tax, that order shall apply. The accounting firm then engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall bear all expenses with respect to the determinations by such appoint a nationally recognized accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.NuZee Management Contract - Xxxxx Xxxxxxxx