Common use of Parachute Payments Clause in Contracts

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of anything contained in this Agreement to the contrary, in the event that it shall be determined that any payment or distribution to or the compensation and benefits provided for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of in this Agreement to Executive together with all other payments and the value of any benefit received or otherwise to be received by Executive: (a a) constitute “Payment”) would be nondeductible by parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under and (b) but for this Agreement to the Reduced Amount (as defined below) ifSection, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction , the Executive’s compensation and benefits pursuant to the terms of this Agreement shall be payable either: (i) in full, or (ii) in such lesser amount which would result in no portion of such compensation and benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the Payments is necessaryreceipt by Executive on an after-tax basis, such reduction shall occur in of the following order: (1) reduction greatest amount of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments compensation and benefits under this Agreement, notwithstanding that all or some portion of such compensation and benefits may be subject to the excise tax imposed under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing by the Company’s independent public accountants serving immediately before the Change in Control (that is, clauses (1the “Accountants”), (2), (3) or (4) whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 6.9(a))5, a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable good faith interpretations concerning the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because applications of Section 280G and 4999 of the Code. (b) All determinations . The Company shall cause the Accountants to be made under this Section 6.9 shall be made at the Company’s expense by a firm provide detailed supporting calculations of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of its determination to Executive and the Company. The Executive and the Company and Executive shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section. To the extent requested by Executive, the The Company shall cooperate with Executive bear all costs the Accountants may reasonably incur in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section 280G and Section 4999, along connection with any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under calculations contemplated by this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement5. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution to or the severance and other benefits provided for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of in this Agreement or otherwise payable to you (a i) constitute “Payment”) would be nondeductible by parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeCode and (ii) but for this Section, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction , then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the Payments is necessaryreceipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall occur be made in the following ordermanner: (1) first a pro-rata reduction of (i) cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid payments subject to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code as deferred compensation and then with respect (ii) cash payments not subject to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G 409A of the Code. , and second a pro rata cancellation of (bi) All determinations equity-based compensation subject to be made Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section 6.9 shall be made at in writing by the Company’s expense by a firm of certified independent public accountants of national standing selected by the Company (the “Accounting FirmAccountants”) which ), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may be make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the firm regularly auditing the financial statements application of Sections 280G and 4999 of the CompanyCode. The Company and Executive you shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section. To the extent requested by Executive, the Company The Accountants shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations deliver to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion you sufficient documentation for you to Executive that he or she has substantial authority not to report any excise rely on it for purpose of filing your tax on his or her Federal income tax return with respect to any Paymentsreturns. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the The Company shall pay to or distribute to or for bear all costs the benefit of Executive such amounts as are then due to Executive under Accountants may reasonably incur in connection with any calculations contemplated by this AgreementSection. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of anything in this Agreement to the contrary, in the event that it shall be determined that if any payment or distribution to benefit the Employee will or for may receive from the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Employer or otherwise (a “280G Payment”) would be nondeductible by (i) constitute a “parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under and (ii) but for this Agreement sentence, be subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then any such 280G Payment pursuant to this Agreement (a “Payment”) shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), 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 the Employee’s receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a Payment is required pursuant to the Payments preceding sentence and the Reduced Amount is necessarydetermined pursuant to clause (x) of the preceding sentence, such the reduction shall occur in the following ordermanner (the “Reduction Method”) that results in the greatest economic benefit for the 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”). (b) Notwithstanding any provision of Section 9.3(a) to the contrary, 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 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, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A as follows: (1A) reduction of cash paymentsas a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for the Employee as determined on an after-tax basis; (2B) cancellation of accelerated vesting of equity awards other than stock options; as a second priority, Payments that are contingent on future events (3e.g., being terminated without Cause), shall be reduced (or eliminated) cancellation of accelerated vesting of stock optionsbefore Payments that are not contingent on future events; and (4C) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that isas a third priority, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts Payments that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value reduced (or eliminated) before Payments that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant are not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” deferred compensation within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement.409A. (c) As If the Employee receives a result of Payment for which the uncertainty in the application Reduced Amount was determined pursuant to clause (x) of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”9.3(a) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by and the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines thereafter that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) some portion of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive Payment is subject to tax under Section 1 and Section 4999 the Excise Tax, the Employee shall promptly return to the Employer a sufficient amount of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company Payment (after reduction pursuant to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(Aclause (x) of Section 9.3(a)) so that no portion of the Coderemaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) of Section 9.3(a), the Employee shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.

Parachute Payments. (a1) Notwithstanding any other provisions of anything in this Agreement to the contrary, in the event that it shall be determined that any payment payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by Employer (or any of its affiliated entities) or any entity which effectuates a Change of Control (or any of its affiliated entities) to or for the benefit of Executive, Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “Payment”the Payments) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by (the Excise Tax) under Section 4999 of the Internal Revenue Code of 1986, as amended (the Code. If a ), then the amounts payable to Employee under this Agreement shall be reduced (reducing first the payments under Section 3(b), unless an alternative method of reduction is elected by Employee) to the maximum amount as will result in no portion of the Payments is necessarybeing subject to such Excise Tax (the Safe Harbor Cap). For purposes of reducing the Payments of the Safe Harbor Cap, such reduction only amounts payable under this Agreement (and no other Payments) shall occur in the following order: (1) reduction of cash payments; be reduced, unless consented to by Employee. (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and Subsection 4(g) shall be made by the public accounting firm that is generally retained by Employer (the Accounting Firm). In the event that the Accounting Firm is serving as accountant or auditor for any individual, entity or group effecting a Change of Control (or if the Accounting Firm fails to make the Determination), Employee may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). If payments are reduced to the Safe Harbor Cap, the Accounting Firm shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an a reasonable opinion to Executive Employee that he or she has substantial authority is not required to report any excise tax Excise Tax on his or her Federal federal income tax return with respect return. All fees, costs and expenses (including, but not limited to any Payments. Any such the costs of retaining experts) of the Accounting Firm shall be borne by Employer, and the determination by the Accounting Firm shall be binding upon Employer and Employee (except as provided in Subsection (3) below). (3) If it is established pursuant to a final determination of a court or an Internal Revenue Service (the Company IRS) proceeding which has been finally and Executive. Subject to Sections 6.1(c) and 6.9conclusively resolved, within five business days thereafterthat Payments have been made to, the Company shall pay to or distribute to or provided for the benefit of, Employee by Employer, which are in excess of Executive the limitations provided in this Section 4 (hereinafter referred to as an Excess Payment), such amounts Excess Payment shall be deemed for all purposes to be a loan to Employee made on the date Employee received the Excess Payment and Employee shall repay the Excess Payment to Employer on demand, together with interest on the Excess Payment at the applicable federal rate (as are then due to Executive under this Agreement. (cdefined in Section 1274(d) of the Code) from the date of Employee’s receipt of such Excess Payment until the date of such repayment. As a result of the uncertainty in the application of Section 280G 4999 of the Code at the time of the initial determination by the Accounting Firm or the Company hereunderdetermination, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, Payments which will not have been made by the Company could Employer shall have been made (“an Underpayment”), in each case, consistent with the calculations required to be made hereunderunder this Subsection 4(g). In the event that it is determined (i) by the Accounting Firm, based upon Employer (which shall include the assertion of a deficiency position taken by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been madeEmployer, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at its consolidated group, on its federal income tax return) or the applicable Federal rate provided for in Section 7872(f)(2)(AIRS, or (ii) of the Code; providedpursuant to a determination by a court, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any Employer shall pay an amount equal to such Underpayment shall be promptly paid by the Company to or for the benefit Employee within ten (10) days of Executive such determination together with interest on such amount at the applicable federal rate provided for in Section 7872(f)(2)(A) from the date such amount would have been paid to Employee until the date of the Codepayment.

Parachute Payments. Payments under this Agreement shall be made without regard to whether the deductibility of such payments (a) Notwithstanding or any other provisions of this Agreement to the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”payments) would be nondeductible limited or precluded by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value Internal Revenue Code of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company 1986 (the “Accounting FirmCode”) which may be and without regard to whether such payments would subject the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, federal excise tax levied on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be certain “reasonable compensationexcess parachute payments” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) 4999 of the Code; provided, however, that no such if the Total After-Tax Payments (as defined below) would be increased by the limitation or elimination of any amount shall payable under this Agreement, then amounts payable under this Agreement will be payable by Executive to the Company if and reduced to the extent such payment would not either reduce necessary to maximize the amount on which Total After-Tax Payments. The determination of whether and to what extent payments under this Agreement are required to be reduced in accordance with the preceding sentence will be made at the Company’s expense by an independent, certified public accountant selected by the Executive is subject and reasonably acceptable to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxesCompany. In the event that of any underpayment or overpayment under this Agreement (as determined after the Accounting Firmapplication of this Section 3), based upon controlling precedent the amount of such underpayment or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall overpayment will be promptly immediately paid by the Company to the Executive or for refunded by the benefit of Executive together to the Company, as the case may be, with interest at the applicable federal rate provided for in Section 7872(f)(2)(A7872(f)(2) of the Code. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of the Executive (whether made hereunder or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the Code).

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement the foregoing, if the total payments and benefits to the contrary, in the event that it shall be determined that any payment or distribution paid to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of Executive under this Agreement or otherwise (a “the "Payment”") would cause any portion of those payments and benefits to be nondeductible "parachute payments" as defined in Code Section 280G(b)(2), or any successor provision, the total payments and benefits to be paid to or for the benefit of Executive under this Agreement shall be reduced by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount Amount. The "Reduced Amount" shall be either (as defined belowx) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than largest portion of the Payment that would be otherwise result in no portion of the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including Payment being subject to the excise tax imposed by Code Section 4999 (the "Excise Tax") or (y) the largest portion, up to and including the total, of the CodePayment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits is necessary so that the Payments is necessaryPayment equals the Reduced Amount, such reduction shall occur in the following order: first by reducing or eliminating the portion of the Payment that is payable in cash, second by reducing or eliminating the portion of the Payment that is not payable in cash (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; Payments as to which Treasury Regulations Section 1.280G-1 Q/A – 24(c) (3or any successor provision thereto) cancellation of accelerated vesting of stock options; and applies (4“Q/A-24(c) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1Payments”)), and third by reducing or eliminating Q/A-24(c) Payments. In the event that any Q/A-24(c) Payment or acceleration is to be reduced, such Q/A-24(c) Payment shall be reduced or cancelled in the reverse order of the date of grant of the awards. The independent public accounting firm serving as the Company's auditing firm immediately prior to the effective date of the Change of Control (2)the "Accountants") shall make in writing in good faith, (3) or (4) subject to the terms and conditions of this Section 6.9(a))3.2, a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code all calculations and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments determinations under this Agreement without causing any Payment Section, including the assumptions to be nondeductible by used in arriving at such calculations and determinations, whether any payments are to be reduced, and the Company because manner and amount of Section any reduction in the payments. For purposes of making the calculations and determinations under this Section, the Accountants may make reasonable assumptions and approximations concerning the application of Code Sections 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Companyand 4999. The Company and Executive shall furnish to the Accounting Firm Accountants and the Company such information and documents as the Accounting Firm Accountants or the Company may reasonably require in order request to make a determination the calculations and determinations under this Section. To the extent requested by Executive, the The Company shall cooperate with Executive bear all fees and costs the Accountants may reasonably charge or incur in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section 280G and Section 4999, along connection with any other applicable portions of the Code or other tax lawscalculations contemplated by this Section. The Accounting Firm shall make all determinations required to be made under this Section and Accountants shall provide its determination, together with detailed supporting calculations regarding any relevant matter, both to the Company and to Executive within 30 by no later than ninety (90) days after following the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and of Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement's Employment. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution to the payments and benefits provided for in this Agreement and the payments and/or benefits provided to, or for the benefit of Executiveof, whether paid the Executive under any other Employer plan or payable agreement (such payments or distributed or distributable pursuant benefits are hereinafter collectively referred to as the terms of this Agreement or otherwise (a “PaymentBenefits”) would be nondeductible by (i) constitute “parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeInternal Revenue Code and (ii) but for this Section 6(e), the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the CodeInternal Revenue Code (the “Excise Tax”), then the Benefits shall either be: (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such Benefits being subject to the Excise Tax (such reduced amount is hereinafter referred to as the “Limited Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of Benefits, notwithstanding that all or some portion of such Benefits may be subject to the Excise Tax. If a reduction applicable, in order to effectuate the Payments is necessaryLimited Amount, such reduction the Employer shall occur first reduce those Benefits which are payable in the following order: (1) reduction of cash and then reduce non-cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first in each case in reverse order beginning with respect to amounts that Benefits which are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible paid the farthest in time from the date of determination that the Benefits will be limited by the Company because of Section 280G of the Code. (be)(ii) All above. Any calculations and determinations to be made required under this Section 6.9 6(e) shall be made at in writing by the Company’s expense by a firm of certified public accountants of national standing selected by the Company independent auditor (the “Accounting FirmAccountant”) which may whose determination shall be the firm regularly auditing the financial statements of the Companyconclusive and binding. The Executive and the Company and Executive shall furnish to the Accounting Firm Accountant such information and documents documentation as the Accounting Firm Accountant may reasonably require request in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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 lawsdetermination. The Accounting Firm Employer shall make pay for all determinations required to be made under costs that the Accountant may reasonably incur in connection with performing any calculations contemplated by this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement6(e). (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution to or the acceleration and severance benefits provided for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of in this Agreement or otherwise (a “Payment”A) would be nondeductible by constitute "parachute payments" within the Company for Federal income tax purposes because meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and (B) but for this paragraph, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction then Employee's benefits hereunder shall occur in the following orderbe payable either: (1X) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that isin full, clauses (1), (2), (3) or (4Y) as to such lesser amount which would result in no portion of this such severance benefits being subject to excise tax under Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G 4999 of the Code. (b) All determinations to , whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits hereunder, notwithstanding that all or some portion of such benefits may be made taxable under Section 4999 of the Code. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6.9 paragraph shall be made at in writing by the Company’s expense by a firm of certified public accountants of national standing selected designated by the Company (the “Accounting Firm”) which "Accountants"), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this paragraph, the Accountants may be make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the firm regularly auditing the financial statements application of Section 280G and 4999 of the CompanyCode. The Company and Executive Employee shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Sectionparagraph. To the extent requested by Executive, the The Company shall cooperate with Executive bear all costs the Accountants may reasonably incur in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section 280G and Section 4999, along connection with any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under calculations contemplated by this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreementparagraph. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of provision in this Agreement to the contraryAgreement, in the event that it shall be determined that any payment payments or distribution benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or for any person affiliated with the benefit of ExecutiveCompany or such person (in the aggregate, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “PaymentPayments”) would be nondeductible by (i) constitute a “parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under and (ii) but for this Agreement sentence, be subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the CodeCode or any similar or successor provision (the “Excise Tax”), then the amount of the Payments shall be equal to either (x) the largest portion of the Payments that would result in no portion of the Payments being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount of the Payments, whichever of the foregoing amounts, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest marginal rate applicable to individuals in the year in which the Payments are to be made), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. If a reduction in the Payments is necessaryrequired so that the amount of the Payments equals the Reduced Amount, such reduction the Payments shall occur be reduced in the following order: (1) reduction of cash paymentsPayments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock optionsoptions that are exempt from Section 409A of the Code; and (4) reduction of any other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect otherwise payable to amounts Executive that are not “deferred compensation” within the meaning of exempt from Section 409A of the Code Code; and then (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G 409A of the Code, as determined by the Company. If acceleration of vesting of Executive’s stock options or other equity awards is to be reduced pursuant to clauses (2) or (3) of the immediately preceding sentence, such acceleration of vesting shall be cancelled by first canceling such acceleration for the vesting installment that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vesting. (b) All computations and determinations to be made under called for by this Section 6.9 7.9 shall be made at and reported in writing to the Company’s expense Company and Executive by a an independent accounting firm of certified public accountants of national standing selected or independent tax counsel appointed by the Company (the “Accounting FirmTax Advisor”) which ), and all such computations and determinations shall be conclusive and binding on the Company and Executive. For purposes of such calculations and determinations, the Tax Advisor may be rely on reasonable, good faith interpretations concerning the firm regularly auditing the financial statements application of Sections 280G and 4999 of the CompanyCode. The Company and Executive shall furnish to the Accounting Firm Tax Advisor such information and documents as the Accounting Firm Tax Advisor may reasonably require request in order to make a determination under this Sectiontheir required calculations and determinations. To the extent requested by Executive, the The Company shall cooperate with Executive in good faith in valuing, bear all fees and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested expenses charged by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return Tax Advisor in connection with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreementits services. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (ai) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that If any payment or distribution to benefit (including payments or for the benefit of Executive, whether paid or payable or distributed or distributable benefits pursuant to the terms of this Agreement Agreement) that Executive would receive in connection with a Change in Control or otherwise (a “Payment”) (1) would be nondeductible by constitute a “parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under and (2) but for this Agreement to the Reduced Amount (as defined below) ifsentence, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. Code (the “Excise Tax”), then the Company shall cause to be determined, before any amount of the Payment is paid to Executive, whether the total payments exceed 2.99 times Executive’s “base amount” within the meaning of Section 280G of the Code (the “Base Amount”) by 15% or less, in which case such Payment shall be reduced to an amount that results in no portion of the Payment being subject to the Excise Tax (the “Reduced Payment”). (ii) If a Reduced Payment is made, (x) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in the Payments is necessary, such reduction payments and/or benefits shall occur in the following order: order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such category acceleration of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction vesting shall occur first with respect to amounts that are not “deferred compensation” within be canceled in the meaning of Section 409A reverse order of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed date of grant unless Executive elects in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Codewriting a different order for cancellation. (biii) All determinations to be made under this Section 6.9 shall be made at If it is determined that the CompanyPayment exceeds 2.99 times Executive’s expense Base Amount by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereaftermore than 15%, the Company shall pay the full amount of the Payment and Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) from the Company in an amount that after the payment of all taxes (including, without limitation, (1) any income or distribute employment taxes, (2) any interest or penalties imposed with respect to such taxes, and (3) any additional Excise Tax on the Gross-Up Payment, Executive shall retain an amount equal to the full Excise Tax. The Gross-Up Payment shall be paid as soon as practicable following the date the Payment is made, but in no event later than the end of the Executive’s taxable year following the taxable year in which Executive has remitted (by withholding or for otherwise) the benefit of Executive such amounts as are then due to Executive under this AgreementExcise Tax. (civ) As a result For purposes of determining the amount of the uncertainty Gross-Up Payment, Executive shall be deemed to have: (x) paid federal income taxes at the highest marginal rate of federal income and employment taxation for the calendar year in which the application Gross-Up Payment is to be made, and (y) paid applicable state and local income taxes at the highest rate of Section 280G taxation for the calendar year in which the Gross-Up Payment is to be made, net of the Code at maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (v) Except as otherwise provided herein, Executive shall not be entitled to any additional payments or other indemnity arrangements in connection with the time of the initial determination by the Accounting Firm Payment or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the CodeGross-Up Payment.

Parachute Payments. (a) Notwithstanding any In the event that the severance and other provisions of benefits provided for in this Agreement to the contrary, in Employee: (i) constitute “parachute payments” within the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”); and (ii) but for this Section, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction in , then the Payments is necessary, such reduction shall occur in the following order: (1Employee’s severance benefits under Sections 2(a) reduction of cash payments; (2and 2(b) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an payable either: (i) in full; or (ii) as to such lesser amount expressed which would result in present value that maximizes the aggregate present value no portion of Payments such severance benefits being subject to excise tax under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G 4999 of the Code. (b, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis, of the greatest amount of severance benefits under Section 2(a) All determinations to and 2(b), notwithstanding that all or some portion of such severance benefits may be made taxable under Section 4999 of the Code. Any determination required under this Section 6.9 4 shall be made at the Company’s expense in writing by a firm of certified independent public accountants of national standing selected by the Company (the “Accounting FirmAccountants”) which ), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may be make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the firm regularly auditing the financial statements application of Section 280G and 4999 of the CompanyCode. The Company and Executive the Employee shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section. To The Company shall bear all costs the extent requested Accountants may reasonably incur in connection with any calculations contemplated by Executivethis Section 4. Any reduction in severance benefits required by this Section 4 shall occur in a manner necessary to provide the service provider with the greatest economic benefit. If more than one manner of reduction of severance benefits necessary to arrive at the reduced amount yields the greatest economic benefit to the service provider, the Company shall cooperate with Executive in good faith in valuing, payments and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm benefits shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreementreduced pro rata. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions provision of this Agreement Agreement, or any other agreement, plan, or arrangement to the contrary, in the event that it shall be determined that if any portion of any payment or distribution benefit under this Agreement, or under any other agreement, plan, or arrangement (in the aggregate, "Total Payments"), would constitute an "excess parachute payment" under IRC §280G, and would, but for this Section 3.(i), result in the imposition on the Employee of an excise tax under IRC §4999 (the "Excise Tax"), then the Total Payments to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant be made to the terms Employee shall either be (a) delivered in full, or (b) delivered in a reduced amount that is One Dollar ($1.00) less than the amount that would cause any portion of this Agreement or otherwise (a “Payment”) would such Total Payments to be nondeductible subject to the Excise Tax, whichever of the foregoing results in the receipt by the Company for Federal income tax purposes because of Section 280G Employee of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net greatest benefit on an after-tax amount than would be the case if no such reduction was made, basis (taking into account the Excise Tax, as well as the applicable federal, state, and local income and foreign income, employment and other taxes, including for which the excise tax imposed Employee shall be deemed to pay at the highest marginal rate for the applicable calendar year). To the extent the foregoing reduction applies, then any such payment or benefit shall be reduced or eliminated by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in applying the following principles, in order: : (1) reduction the payment or benefit with the higher ratio of cash paymentsthe parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) cancellation of accelerated vesting of equity awards other than stock optionsthe payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cancellation cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and or elimination would violate IRC §409A, then the reduction shall be made pro rata among the payment or benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within on the meaning of Section 409A basis of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate relative present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because parachute payments). The determination of Section 280G of whether the Code. (b) All determinations to Excise Tax or the foregoing reduction will apply will be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing independent tax counsel selected and paid by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements regular counsel of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement). (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding If Independent Tax Counsel (as defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other provisions of this Agreement payments and benefits provided or to be provided to the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by Executive from the Company for Federal income tax purposes because or any of its Subsidiaries or other Affiliates or any successors thereto constitute "parachute payments" as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the "Code, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount ") (as defined belowor any successor provision thereto) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than ("Parachute Payments") that would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the CodeCode (the "Excise Tax"), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax. If a reduction Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments is necessarywere not reduced pursuant to this Section 7(a), then no such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no in such amount case the provisions of Sections 7(b)(i) and 7(b)(ii) shall not be operative. The determination of the Independent Tax Counsel under this subsection (a) shall be payable by final and binding on all parties hereto. The determination of which payments or benefits to reduce in order to avoid the Excise Tax shall be determined in the sole discretion of the Executive; provided, however, that unless the Executive gives written notice to the Company if specifying the order to effectuate the limitations described above within ten (10) days of the Independent Tax Counsel’s determination to make such reduction, the Company shall first reduce those payments or benefits that will cause a dollar-for-dollar reduction in total Parachute Payments, and then by reducing other Parachute Payments, to the extent such payment would not either reduce possible, in reverse order beginning with payments or benefits that are to be paid the amount on which farthest in time from the date the reduction is to be made. Any notice given by the Executive is subject pursuant to the preceding sentence, unless prohibited by law, shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlement to any benefits or compensation. For purposes of this Section 7(a), "Independent Tax Counsel" shall mean an attorney, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firmlaw, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment who shall be promptly selected by the Company and shall be acceptable to the Executive (the Executive's acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the CodeCompany.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that If any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable Executive would receive pursuant to the terms of this Agreement or pursuant to any other agreement with the Company following a change in the ownership or effective control of the Company or change in the ownership of a substantial portion of the assets of the Company (which change, as further defined in Section 280G of the Code and regulations promulgated thereunder (“Section 280G”), is referred to herein as a “280G Change in Control” from the Company or otherwise (a “Payment”) would be nondeductible by (i) constitute a “parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) ifG, and only if(ii) but for this section, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be 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 the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payments is necessaryPayment equals the Reduced Amount, such reduction shall occur in the following order: (1) reduction of cash payments, in the following order: (a) first, severance payments under this Agreement, (b) second, severance payments under any other agreement with the Company and (c) third, any other cash payments under any of the foregoing agreements; (2) cancellation of accelerated the acceleration of vesting of equity awards other than stock options, restricted stock, restricted stock units or any other awards that vest based on attainment of performance measures; (3) cancellation of accelerated the acceleration of vesting of stock options; , restricted stock and restricted stock units or any other awards that vest only based on Executive’s continued service to the Company, taking the last ones scheduled to vest (absent the acceleration) first, and (4) reduction other non-cash forms of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Codebenefits. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any In the event that the severance and other provisions of benefits provided for in this Agreement to Employee: (i) constitute “parachute payments” within the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because meaning of Section 280G of the Code; and (ii) but for this Section, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other then Employee’s severance benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this under Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” 4 shall be an payable either: (i) in full; or (ii) as to such lesser amount expressed which would result in present value that maximizes the aggregate present value no portion of Payments such severance benefits being subject to excise tax under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G 4999 of the Code. (b) All determinations to , whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Employee on an after-tax basis, of the greatest amount of severance benefits under Section 4, notwithstanding that all or some portion of such severance benefits may be made taxable under Section 4999 of the Code. Any determination required under this Section 6.9 6 shall be made at the Company’s expense in writing by a firm of certified independent public accountants of national standing selected by the Company (the “Accounting FirmAccountants”) which ), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 6, the Accountants may be make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the firm regularly auditing the financial statements application of Section 280G and 4999 of the CompanyCode. The Company and Executive Employee shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section. To The Company shall bear all costs the extent requested Accountants may reasonably incur in connection with any calculations contemplated by Executivethis Section 6. Any reduction in severance benefits required by this Section 6 shall occur in a manner necessary to provide Employee with the greatest economic benefit. If more than one manner of reduction of severance benefits is necessary to arrive at the reduced amount yields the greatest economic benefit to Employee, the Company shall cooperate with Executive in good faith in valuing, payments and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm benefits shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreementreduced pro rata. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (ai) Notwithstanding any other provisions provision of this Agreement to the contrary, in the event that it shall if any amount or benefit to be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of provided under this Agreement or otherwise (a “Payment”) would be nondeductible by an “Excess Parachute Payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) but for the application of this sentence, then the Company shall reduce the aggregate present value of the Payments under this Agreement payments and benefits to the Reduced Amount (as defined below) if, and only if, reducing the Payments be paid or provided under this Agreement will provide Executive with a greater net be reduced to the minimum extent necessary (but in no event to less than zero (0)) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax amount than would be the case if no such reduction was made, basis (taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). If a reduction The fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 10(c)(i) will not of itself limit or otherwise affect any other rights of Executive other than pursuant to this Agreement. In the Payments event that any payment or benefit intended to be provided under this Agreement or otherwise is necessaryrequired to be reduced pursuant to this Section 10(c)(i), the Company will effect such reduction shall occur to the extent necessary in the following order: (1) reduction of first, performance-based equity grants; second, time-based equity grants; third other noncash benefits; and fourth, cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any each group, such category of benefits or payments shall be reduced in the reverse order in which they would otherwise have been vested or paid. (ii) All computations and benefits (that is, clauses (1), (2), (3) or (4) of determinations relevant to this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” 10(c)(ii) shall be an amount expressed implemented in present value a manner that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to Executive’s after-tax economic benefit and be nondeductible made by an independent accounting firm selected and paid by the Company because of Section 280G of the Code. (b) All determinations and reasonably acceptable to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company Executive (the “Accounting Firm”) ), which firm may be the firm regularly auditing Company’s ordinary course accountants. If the financial statements of Accounting Firm determines that any amounts are Excess Parachute Payments, the CompanyAccounting Firm shall provide its determination (the “Determination”), together with detailed supporting calculations both to the Company and Executive. If the Accounting Firm determines that no amounts are Excess Parachute Payments, it shall furnish Executive and the Company with a written statement that such Accounting Firm has so concluded that no excise tax is payable (including the reasons therefor) and that Executive has substantial authority not to report any excise tax on his federal income tax. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require request in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations Determination hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section its Determination on the basis of substantial authority and shall provide detailed supporting calculations opinions to that effect to both the Company and Executive within 30 days after upon the Termination Date or such earlier time as is requested by request of either of them. (iii) The Executive shall have the Companyright, and provide an opinion at the Executive’s expense, to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such contest the determination by of the Accounting Firm shall be binding upon by providing written notice to the Company within fifteen (15) days following receipt of the determination, together with alternative calculations prepared by an independent advisor reasonably acceptable to the Company. If the Company and Executive. Subject the Executive are unable to Sections 6.1(cresolve such dispute within ten (10) and 6.9, within five business days thereafterdays, the Company matter shall pay be submitted to a mutually agreed independent nationally recognized accounting firm, whose determination shall be final and binding. Pending final resolution, payments shall be made in accordance with the original determination, subject to adjustment (including repayment or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Paymentsadditional payment, as the case may be, will have been made by the Company which should not have been made (“Overpayment”applicable) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codefollowing final determination.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution to or the severance and other benefits provided for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of in this Agreement or otherwise payable to the Executive (a i) constitute “Payment”) would be nondeductible by parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeCode and (ii) but for this Section 7, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction , then, the Executive’s severance and other benefits under this Agreement shall be either (x) delivered in full, or (y) delivered as to such lesser extent which would result in no portion of such severance and other benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the Payments is necessaryreceipt by the Executive on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. In the event the Executive’s severance and other benefits are delivered to a lesser extent pursuant to the foregoing clause (y), such reduction severance and other benefits shall occur be reduced in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; , in each case, in reverse chronological order beginning with the severance and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within to be paid the meaning of Section 409A further in time from consummation of the Code and then with respect transaction that is subject to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. , unless otherwise agreed to by the Executive and the Company: (bA) All determinations to be made cash payments; (B) equity-based payments and acceleration; and (C) non-cash forms of benefits. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 6.9 7 shall be made at the Company’s expense in writing by a an accounting firm of certified public accountants of national standing selected by the Company (the “Accounting FirmAccountant”) which ), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 7, the Accountant may be make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the firm regularly auditing the financial statements application of Sections 280G and 4999 of the CompanyCode. The Company and the Executive shall will furnish to the Accounting Firm Accountant such information and documents as the Accounting Firm Accountant may reasonably require request in order to make a determination under this Section. To the extent requested by Executive, the The Company shall cooperate with Executive bear all costs the Accountant may reasonably incur in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section 280G and Section 4999, along connection with any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under calculations contemplated by this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement7. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding To the extent consistent with applicable law, the payment of any other provisions amounts or the provision of this Agreement to the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of benefits under this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Codeany other agreement including, without limitation, the Company shall reduce the aggregate present value of the Payments under this Agreement Total Payments, will be reduced or adjusted to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including avoid triggering the excise tax (the “Excise Tax”) imposed by Section 4999 of the CodeCode (the “Required Reduction”), if such adjustment would result in the provision of a greater total benefit, on a net after-tax basis (after taking into account any applicable federal, state and local income and employment taxes and the Excise Tax), to Executive. If In the case of a reduction in the Total Payments, the Total Payments is necessary, such reduction shall occur will be reduced in the following order: (1i) reduction by reducing any cash payments to be made to Executive (excluding any cash payment with respect to the acceleration of cash paymentsequity-based compensation); (2ii) cancellation by canceling the acceleration of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock optionsany outstanding equity-based compensation awards; and (4iii) reduction of by reducing any other non-cash benefits paid provided to Executive. Within any such category In the case of payments the reductions to be made pursuant to each of the above-mentioned clauses, the payment and/or benefit amounts to be reduced, and benefits the acceleration of vesting to be cancelled, shall be reduced or cancelled in the inverse order of their originally scheduled dates of payment or vesting, as applicable, and shall be so reduced: (x) only to the extent that isthe payment and/or benefit otherwise to be paid, clauses (1)or the vesting of the award that otherwise would be accelerated, (2), (3) or (4) of this Section 6.9(a)), would be treated as a reduction shall occur first with respect to amounts that are not “deferred compensationparachute payment” within the meaning of Code Section 409A of 280G(b)(2)(A); and (y) only to the Code and then with respect extent necessary to amounts that areachieve the Required Reduction. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 16(e) (as well as with respect to any payments provided to any other “disqualified individual” of the Company within the meaning of Section 280G(c) of the Code) shall be made at the Company’s expense by a nationally recognized accounting or consulting firm of certified public accountants of national standing as selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to Executive and the Company Company. All fees and Executive within 30 days after expenses of the Termination Date or such earlier time as is requested Accounting Firm shall be borne by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination All determinations by the Accounting Firm shall be binding upon on Executive and the Company and Executiveabsent manifest error. Subject Notwithstanding the foregoing, if prior to Sections 6.1(c) and 6.9, within five business days thereafter, a change in ownership or effective control of the Company shall pay to or distribute to or for the benefit of Executive such amounts (as are then due to Executive under this Agreement. (c) As a result of the uncertainty described in the application of Section 280G of the Code at and the time regulations and guidance promulgated thereunder), no stock of the initial determination by Company is readily tradable on an established securities market and the Accounting Firm or determines that the Excise Tax would be imposed upon the Total Payments (and any other payments) then, subject to Executive’s execution of a written agreement providing that Executive will waive any portion of the Total Payments (and any other payments) that would otherwise cause such payments to be subject to the Excise Tax, the Company hereunder, it is possible that Payments, as agrees to use commercially reasonable efforts to submit to the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”)Company’s shareholders for approval, in each case, consistent with the calculations required to be made hereunder. In the event a manner that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in satisfies Section 7872(f)(2)(A280G(b)(5)(B) of the Code; provided, however, that no such amount shall be payable by Executive Executive’s conditional right to receive the portion of the Total Payments (and other payments) otherwise subject to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codewaiver agreement.

Parachute Payments. (ai) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “PaymentPayments”) ), would be nondeductible by constitute an “excess parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce (but not below zero) the aggregate present value of the Payments under this the Agreement to the Reduced Amount (as defined below) if), and only if, if reducing the Payments under this Agreement will provide the Executive with a greater net after-tax amount than would be the case if no such reduction was made. The Payments shall be reduced as described in the preceding sentence only if (A) the net amount of the Payments, taking into account as so reduced (and after subtracting the applicable net amount of federal, statestate and local income and payroll taxes on the reduced Payments), local and foreign income, employment and other taxes, including is greater than or equal to (B) the excise tax imposed by Section 4999 net amount of the Code. If a Payments without such reduction in (but after subtracting the net amount of federal, state and local income and payroll taxes on the Payments is necessary, such reduction shall occur in and the following order: amount of Excise Tax (1as defined below) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first which the Executive would be subject with respect to the unreduced Payments). Only amounts that are not “deferred compensation” within the meaning of payable under this Agreement shall be reduced pursuant to this Section 5(l), and any reduction shall be made in accordance with Section 409A of the Code and then with respect to amounts that are. Code. (ii) The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment under this Agreement to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish subject to the Accounting Firm such information and documents as the Accounting Firm may reasonably require Excise Tax, determined in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate accordance with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to competeSection 280G(d)(4) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, The term “Excise Tax” means the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive imposed under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting FirmCode, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with any interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codeor penalties imposed with respect to such excise tax.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution to the payments and benefits provided for in this Agreement and the payments and/or benefits provided to, or for the benefit of Executiveof, whether paid the Executive under any other Company plan or payable agreement (such payments or distributed or distributable pursuant benefits are hereinafter collectively referred to as the terms of this Agreement or otherwise (a “PaymentBenefits”) would be nondeductible by (i) constitute “parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeInternal Revenue Code and (ii) but for this Section 6(e), the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the CodeInternal Revenue Code (the “Excise Tax”), then the Benefits shall either be: (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such Benefits being subject to the Excise Tax (such reduced amount is hereinafter referred to as the “Limited Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of Benefits, notwithstanding that all or some portion of such Benefits may be subject to the Excise Tax. If a reduction applicable, in order to effectuate the Payments is necessaryLimited Amount, such reduction the Company shall occur first reduce those Benefits which are payable in the following order: (1) reduction of cash and then reduce non-cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first in each case in reverse order beginning with respect to amounts that Benefits which are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible paid the farthest in time from the date of determination that the Benefits will be limited by the Company because of Section 280G of the Code. (be)(ii) All above. Any calculations and determinations to be made required under this Section 6.9 6(e) shall be made at in writing by the Company’s expense by a firm of certified public accountants of national standing selected by the Company independent auditor (the “Accounting FirmAccountant”) which may whose determination shall be the firm regularly auditing the financial statements of the Companyconclusive and binding. The Executive and the Company and Executive shall furnish to the Accounting Firm Accountant such information and documents documentation as the Accounting Firm Accountant may reasonably require request in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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 lawsdetermination. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event all costs that the Accounting Firm, based upon the assertion of a deficiency Accountant may reasonably incur in connection with performing any calculations contemplated by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in this Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code6(e).

Parachute Payments. (ai) Notwithstanding anything in this Agreement or any other provisions agreement between Executive and the Company (or any of this Agreement its subsidiaries or affiliates) to the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because provisions of Section 280G of the Code relating to “parachute payments” (as defined in the Code, ) shall be applicable to any payment or benefit received or to be received by Executive from the Company or its affiliates in connection with a change in the ownership or effective control of the Company within the meaning of Section 280G of the Code (a “Change of Control Transaction”) (collectively, “Payments”), then any such Payments shall reduce be equal to the aggregate present value Reduced Amount; where the “Reduced Amount” is (1) the largest portion of the Payments under this Agreement that will result in no portion of such Payments being subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code, or (2) the entire amount of the Payments otherwise scheduled to be paid (without reduction), whichever of the forgoing amounts after taking into account all applicable federal, state and local employment taxes, income taxes and the excise tax of Section 4999 of the Code (all computed at the highest applicable merged rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of all state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of Payments. If subsection (1) above applies and a reduction in reduced amount of the Payments is necessarypayable, then any reduction of Payments required by such reduction provision shall occur in the following order: (1i) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a))first, a reduction shall occur first with respect to amounts of any Payments that are not “deferred compensation” within the meaning of exempt from Section 409A in a manner the Company reasonably determines will provide Executive with the greatest post-reduction economic benefit and (ii) second, a reduction of the Code and then any Payments that are subject to Section 409A on a pro-rata basis or such other manner that complies with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible Section 409A, as reasonably determined by the Company. (ii) In connection with a Change of Control Transaction, the Company because of shall engage a certified public accounting firm (“Accountants”) to perform the calculations to determine if the Payments to Executive would reasonably be subject to Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company , and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive use commercially reasonable efforts to (1) cause the Accountants to finalize such calculations and (2) deliver such calculations and supporting documentation to Executive, by no later than five (5) days before the closing of the Change of Control Transaction. In the event it is later determined that a greater reduction in good faith in valuingthe Payments should have been made to implement the objective and intent of this Section 2(f), and the Accounting Firm excess amount shall value, services to be provided returned immediately by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion plus interest at a rate equal to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result 120% of the uncertainty semi-annual applicable federal rate as in the application of Section 280G of the Code effect at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion Change of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the CodeControl.

Parachute Payments. (ai) Notwithstanding any other provisions of anything in this Agreement or elsewhere to the contrary, in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (each, a “Payment”) ), would be nondeductible by constitute an “excess parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall will reduce (but not below zero) the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if), and only if, if reducing the Payments under this Agreement will provide Executive with a greater net afterNet After-tax amount than would be the case Tax Benefit that exceeds his Net After-Tax Benefit if no such reduction was is not made. To the extent such Payments are required to be so reduced, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur they will be reduced in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid order and, to Executive. Within any such category of payments and benefits (that isthe extent applicable, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first in accordance with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then Code, such that any such reduction does not result in Executive incurring any income inclusion, “additional tax”, or interest under Section 409A of the Code: (i) Payments that are payable in cash, with respect to amounts that areare payable last reduced first; (ii) Payments due in respect of any equity or equity derivatives included in such calculation at their full value under Section 280G (rather than their accelerated value), with amounts that are payable last reduced first; and (iii) Payments due in respect of any equity or equity derivatives included in such calculation at their accelerated value under Section 280G, with the highest per share values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24). If the same payment or benefit date applies to more than one payment or benefit within any of the foregoing categories, the reduction will apply to each such payment or benefit on a pro rata basis. (ii) The “Reduced Amount” shall will be an amount expressed in present value that maximizes the aggregate expected net after-tax present value of the Payments under this Agreement without causing any Payment under this Agreement to be nondeductible by subject to the Company because of Excise Tax. The term “Excise Tax” means the excise tax imposed under Section 280G 4999 of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section 280G and Section 4999, along together with any other applicable portions of the Code interest or other tax laws. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return penalties imposed with respect to any Paymentssuch excise tax. Any such determination by The term “Net After-Tax Benefit” means the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts present value (as are then due to Executive under this Agreement. (c) As a result of the uncertainty determined in the application of accordance with Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A280G(d)(4) of the Code; provided, however, that no such amount shall be payable by ) of the Payments net of all taxes imposed on Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax with respect thereto under Section Sections 1 and Section 4999 of the Code or generate a refund and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of such taxes. In the event Code and under the state and local laws that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company applied to or Executive’s taxable income for the benefit of immediately preceding taxable year, or such other rate(s) as Executive together with interest at certifies are likely to apply to him in the applicable federal rate provided for in Section 7872(f)(2)(A) of the Coderelevant tax year(s).

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall any payments or benefits received or to be determined that any payment or distribution to or for received by the benefit of Executive, whether paid or payable or distributed or distributable Executive pursuant to the terms of this Agreement or otherwise (a i) constitute “Payment”) would be nondeductible by parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, as determined by the accounting firm that audited the Company shall reduce prior to the aggregate present value relevant “change in ownership or control” within the meaning of Section 280G of the Payments Code or another nationally known accounting or employee benefits consulting firm selected by the Company prior to such change in ownership or control (the “Accounting Firm”) and (ii) but for this Section 8(j), would, in the judgment of the Accounting Firm, be subject to the excise tax imposed by Section 4999 of the Code by reason of Section 280G of the Code, then the Executive’s benefits under this Agreement shall be payable either: (A) in full, or (B) as to such lesser amount which would result in no portion of such payments or benefits being subject to the Reduced Amount (excise tax under Section 4999 of the Code, as defined below) ifdetermined by the Accounting Firm, and only if, reducing whichever of the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was madeforegoing amounts, taking into account the applicable federal, state, state and local income and foreign income, employment taxes and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction , results in the Payments is necessaryreceipt by Executive, such reduction shall occur in on an after-tax basis, of the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category greatest amount of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible Agreement, as determined by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which , notwithstanding that all or some portion of such payments and benefits may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations taxable under Section 280G 4999 of the Code. In the event that a lesser amount is paid under clause (ii)(B) above, then the elements of Executive’s payments hereunder shall be reduced in such order (1) as the Company determines, in its sole discretion, has the least economic detriment to the Executive and (2) which does not result in the imposition of any tax penalties under Section 409A on the Executive. To the extent the economic impact of reducing payments from one or more elements is equivalent, and subject to clause (2) of the preceding sentence, the reduction may be made pro rata by the Company in its sole discretion. In connection with making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding take into account the applicability value of Section any reasonable compensation for services to be rendered by the Executive before or after the 280G and Section 4999CIC, along with including any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations noncompetition provisions that may apply to the Company and Executive within 30 days after the Termination Date (whether set forth in this Agreement or such earlier time as is requested by the Companyotherwise), and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty cooperate in the application valuation of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; providedservices, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, including any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codenoncompetition provisions.

Parachute Payments. (a) Notwithstanding any other provisions It is the objective of this Agreement to maximize the contraryExecutive’s Net After-Tax Benefit (as defined herein) if payments or benefits provided under this Agreement are subject to excise tax under Section 4999 of Code. Therefore, in the event that it shall be is determined that any payment or distribution benefit by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible otherwise, including, by example and not by way of limitation, acceleration by the Company for Federal income tax purposes because of Section 280G or otherwise of the Codedate of vesting or payment or rate of payment under any plan, the Company shall reduce the aggregate present value program or arrangement of the Payments under this Agreement to the Reduced Amount (as defined below) ifCompany, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within Code or any such category of payments and benefits (that is, clauses (1), (2), (3) interest or (4) of this Section 6.9(a)), a reduction shall occur first penalties with respect to amounts that such excise tax (such excise tax, together with any such interest and penalties, are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect hereinafter collectively referred to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (as the “Accounting FirmExcise Tax”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive), the Company shall cooperate with first make a calculation under which such payments or benefits provided to the Executive in good faith in valuing, and under this Agreement are reduced to the Accounting Firm extent necessary so that no portion thereof shall value, services be subject to be provided the excise tax imposed by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date Section 4999 of the transaction which cause Code (the “4999 Limit”). The Company shall then compare (x) the Executive’s Net After-Tax Benefit assuming application of the 4999 Limit with (y) the Executive’s Net After-Tax Benefit without the application of Section 280G of the Code such that payments in respect of such services may 4999 Limit and the Executive shall be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations entitled to the Company greater of (x) or (y). “Net After-Tax Benefit” shall mean the sum of (i) all payments and benefits which the Executive within 30 days after the Termination Date receives or such earlier time as is requested by then entitled to receive from the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal less (ii) the amount of federal income tax return taxes payable with respect to any Payments. Any the payments and benefits described in (i) above calculated at the maximum marginal income tax rate for each year in which such determination by the Accounting Firm payments and benefits shall be binding paid to the Executive (based upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or rate for the benefit of Executive such amounts year as are then due to Executive under this Agreement. (c) As a result of the uncertainty set forth in the application of Section 280G of the Code at the time of the initial determination by first payment of the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”foregoing), in each case, consistent less (iii) the amount of excise taxes imposed with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay respect to the Company any such Overpayment paid or distributed payments and benefits described in (i) above by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code Code. The determination of whether a payment or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that benefit constitutes an Underpayment has occurred, any such Underpayment excess parachute payment shall be promptly paid made by tax counsel selected by the Company and reasonably acceptable to or for the benefit Executive. The costs of Executive together with interest at obtaining this determination shall be borne by the applicable federal rate provided for in Section 7872(f)(2)(A) of the CodeCompany.

Parachute Payments. (a) Notwithstanding any other provisions provision of this Agreement Section 3, if it is determined that part or all of the compensation or benefits to be paid to the contraryEmployee under this Agreement in connection with the Employee’s Severance Termination , in or under any other plan, arrangement or agreement, constitutes a “parachute payment” under section 280G(b)(2) of the event Internal Revenue Code of 1986, as amended, then the amount constituting a parachute payment that it shall would otherwise be determined that any payment or distribution payable to or for the benefit of Executivethe Employee first shall be deferred (to the greatest extent permitted by such applicable law), whether paid and to the extent not so deferred, shall be reduced (if required under such applicable law), but only to the extent necessary, so that such amount would not constitute a parachute payment. Any determination that a payment constitutes a parachute payment shall be made as promptly as practicable following the Employee’s termination of employment (but not later than the date payment is required under subsection (a) of this Section) by the independent public accountants that audited the Company’s financial statements for the fiscal year preceding the year in which the Employee’s employment was terminated, whose determination shall be final and binding in all cases. Unless the Employee is given notice that a payment (or payable payments) will constitute a parachute payment prior to the earlier of (1) receipt of such payments or distributed (2) the tenth business day following his or distributable her Severance Termination, no payment (or payments) shall be deemed to constitute a parachute payment. If the determination made pursuant to this subsection would result in a deferral (to the terms greatest extent permitted under such applicable law) and to the extent not so deferred, a reduction (to the minimum extent required by such applicable law) of this Agreement the payments that would otherwise be paid to the Employee, the Employee may elect, in his sole discretion, which and how much of any particular entitlement shall be so deferred or otherwise reduced (a “Payment”giving effect to any payments and benefits that may have been received prior to such termination) would be nondeductible and shall advise the Company in writing of his election within 10 days of the determination of the deferral or reduction in payments. If no such election is made by the Company for Federal income tax purposes because of Section 280G of the CodeEmployee within such 10-day period, the Company shall reduce the aggregate present value determine which and how much of the Payments under this Agreement any entitlement shall be deferred (to the Reduced Amount greatest extent permitted under such applicable law) and, to the extent not so deferred, reduced (as defined belowto the extent required under such applicable law) if, and only if, reducing shall notify the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no Employee promptly of such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Companydetermination. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company (or shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunderapplicable SPAR Affiliate to) pay to, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive of, the Employee such amounts as are then due to Executive the Employee under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm Agreement and shall timely pay to, or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company distribute to or for the benefit of Executive together with interest at of, the applicable Federal rate provided for Employee in Section 7872(f)(2)(A) of the Code; provided, however, that no future such amount shall be payable by Executive amounts as become due to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax Employee under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codethis Agreement.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, This Section 14 shall apply only in the event that it shall be determined that any payment or distribution to or for the benefit case of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount Statutory Change in Control (as defined below) ifoccurring after the initial public offering of shares of BPS, and only ifat a time when the Company or BPS has stock which is “readily tradable on an established securities market or otherwise” (within the meaning of Section 280G(b)(5)(A)(ii)(I) of the Internal Revenue Code of 1986, reducing as amended (the Payments “Code”)). In the event it is determined that any of the payments or benefits (including, without limitation, accelerated vesting of equity rights or other benefits) otherwise payable to the Executive under this Agreement will provide Executive or any other plan, arrangement or agreement with the Company or any Affiliate (collectively, the “Payments”), including by reason of the Executive’s termination of employment in connection with a greater net after-tax amount than Change of Control or other event that constitutes a change in ownership or control of the Company as defined in Code Section 280G (a “Statutory Change in Control”) would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Code Section 4999 (the “Excise Tax”), then such Payments shall be reduced or eliminated to the extent necessary so that the aggregate Payments received by the Executive will not be subject to the Excise Tax, but only if by reason of such reduction, the net after tax benefit to the Executive exceeds the net after tax benefit to the Executive without any such reduction. “Net after tax benefit” for purposes of this Section 14 shall mean the sum of (i) the Payments to be made less (ii) the amount of federal income and employment taxes payable with respect to such Payments, calculated at the maximum marginal income tax rate for the year of payment (based upon the rate in effect for such year as set forth in the Code at the time of termination of the Code. Executive’s employment) and less (iii) the amount of Excise Taxes imposed with respect to such Payments. (b) If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) first, a reduction of cash payments; (2) cancellation of accelerated vesting of payments not attributable to equity awards other than stock optionswhich vest on an accelerated basis; (3) second, the cancellation of accelerated vesting of stock optionsawards; and (4) third, the reduction of other employee benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), fourth a reduction in any other “parachute payments” (as defined in Code Section 280G). If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall occur first 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. The determinations with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 14 shall be made at by the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuingregular outside accountants, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit fees and expenses of Executive such amounts as are then due to Executive under this Agreementaccountants. (c) As While it is the intention of the Company and the Executive to reduce the amounts payable or distributable to the Executive hereunder only if the aggregate net after tax benefits to the Executive would thereby be increased, as a result of the uncertainty in the application of Section 280G 4999 of the Code at the time of the an initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, amounts will have been made paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement which should not have been made so paid or distributed (“Overpayment”) or that additional Payments, as the case may be, amounts which will have not have been made paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement could have been made so paid or distributed (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting FirmCompany’s accountants, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accounting Firm believes accountants believe has a high probability of success determines success, determine that an Overpayment has been made, promptly on notice and demand then the Executive shall repay any such Overpayment to the Company any within ten business days of his receipt of notice of such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the CodeOverpayment; provided, however, that no such amount shall be payable by the Executive to the Company if and to the extent such deemed payment would not either reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firmaccountants, based upon controlling precedent or other substantial authority, determines determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(AExecutive; provided, that any such Underpayment shall constitute a payment (within the meaning of Treas. Reg. § 1.409A-2(b)(2)) separate and apart from the Payments; and provided, further that any such Underpayment shall be deemed a disputed payment (within the meaning of Treas. Reg. § 1.409A-3(g)) and shall be made no later than the end of the Codefirst taxable year of the Company in which the accounting firm determines pursuant to this Section 14(c) that such Underpayment is due.

Parachute Payments. (a) Notwithstanding any other provisions of anything in this Agreement to the contrary, in the event that it shall be determined that any payment or distribution by the Company or any other person or entity to or for the benefit of Executivethe Executive is a "parachute payment" (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with the Company or a change in ownership or effective control of the Company or a substantial portion of its assets (a “"Payment”) "), and would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the CodeCode (the "Excise Tax"), the Payments shall be reduced (but not below zero) if and to the extent that such reduction would result in the Executive's retaining a larger amount, on an after-tax basis (taking into account all federal, state and local income taxes and the imposition of the Excise Tax), than if the Executive had received all of the Payments. If the application of the preceding sentence should require a reduction in the Payments is necessaryor other "parachute payments," unless the Executive shall have designated otherwise, such reduction shall occur be implemented first, by reducing any non-cash benefits to the extent necessary and, second, by reducing any cash benefits to the extent necessary. In each case, the reductions shall be made starting with the payment or benefit to be made on the latest date as of which any Payment would be made and reducing Payments in reverse chronological order therefrom. All determinations concerning the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) application of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 6 shall be made at the Company’s expense by a nationally recognized firm of certified public accountants of national standing independent accountants, selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of Executive and satisfactory to the Company, whose determination shall be conclusive and binding on all parties. The Company fees and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect expenses of such services may accountants shall be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested borne by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to If the contraryBoard determines, in the event its sole discretion, that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the CodeCode applies to any compensation or benefits payable to the Executive, then the provisions of this Section 5 shall apply to such compensation or benefits, as applicable. If any payments or benefits to which the Executive is entitled from the Company, any affiliate, any successor to the Company or an affiliate, or any trusts established by any of the foregoing by reason of, or in connection with, any transaction that occurs after the date hereof (collectively, the Company “Payments,” which shall reduce include, without limitation, the aggregate vesting of any equity awards or other non- cash benefit or property) are, alone or in the aggregate, more likely than not, if paid or delivered to the Executive, to be subject to the tax imposed by Section 4999 of the Code or any successor provisions to that section, then the Payments (beginning with any Payment to be paid in cash hereunder), shall be either (i) reduced (but not below zero) so that the present value of such total Payments received by the Payments under this Agreement to Executive will be one dollar less than three times the Reduced Amount Executive’s “base amount” (as defined belowin Section 280G(b)(3) if, of the Code) and only if, reducing so that no portion of such Payments received by the Payments under this Agreement will provide Executive with a greater net after-tax amount than would shall be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction , or (ii) paid in the Payments is necessaryfull, such reduction shall occur in the following order: whichever of (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3i) or (4ii) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within produces the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish better net after tax position to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section 280G and Section 4999, along with taking into account any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code and any other applicable taxes). The determination as to whether any Payments are more likely than not to be subject to taxes under Section 4999 of the Code and as to whether reduction or generate a refund payment in full of such taxes. In the event that amount of the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment Payments provided hereunder results in the better net after tax position to the Executive shall be promptly paid made by the Company to or for Board in good faith, which, if reasonably necessary, will include making such determination based on advice from an independent public accounting firm with a national reputation in the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the CodeUnited States.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contraryor any other Company plan, arrangement or agreement (“Company Arrangement”), in the event that it shall be determined that any payment or distribution benefit by the Company or otherwise to or for the benefit of ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, all such payments and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxesbenefits, including the payments and benefits under this Section 6 above, being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) to the minimum extent necessary to avoid the imposition of the Excise Tax on the Total Payments. If a reduction in the Payments is necessary, Any such reduction shall occur be made by the Company in its sole discretion consistent with the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning requirements of Section 409A of the Code and then with respect to amounts that are(“Section 409A”). The “Reduced Amount” Any determination required under this Section 6(f), including whether any payments or benefits are parachute payments, shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible made by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 in its sole discretion. Employee shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by provide the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm with such information and documents as the Accounting Firm Company may reasonably require request in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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 laws6(f). The Accounting Firm Company’s determinations shall make all determinations required to be made under this Section final and shall provide detailed supporting calculations to binding on the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunderEmployee. In the event it is later determined that to implement the Accounting Firmobjective and intent of this Section 6(f), based upon (i) a greater reduction in the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has Total Payments should have been made, the excess amount shall be returned promptly on notice and demand Executive shall repay by Employee to the Company any such Overpayment or (ii) a lesser reduction in the Total Payments should have been made, the excess amount shall be paid or distributed provided promptly by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; providedEmployee, however, that no such amount shall be payable by Executive to the Company if and except to the extent such payment the Company reasonably determines would not either reduce the amount on which Executive is subject to result in imposition of an excise tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.409A.

Parachute Payments. Payments under this Agreement shall be made without regard to whether the deductibility of such payments (a) Notwithstanding or any other provisions of this Agreement to the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”payments) would be nondeductible limited or precluded by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value Internal Revenue Code of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company 1986 (the “Accounting FirmCode”) which may be and without regard to whether such payments would subject the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish Employee to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, federal excise tax levied on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be certain “reasonable compensationexcess parachute payments” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) 4999 of the Code; provided, however, that no such if the Total After-Tax Payments (as defined below) would be increased by the limitation or elimination of any amount shall payable under this Agreement, then the amount payable under this Agreement will be payable by Executive to the Company if and reduced to the extent such payment would not either reduce necessary to maximize the amount on which Executive is subject Total After-Tax Payments. The determination of whether and to tax what extent payments under Section 1 this Agreement are required to be reduced in accordance with the preceding sentence will be made at the Company’s expense by an independent, certified public accountant selected by the Employee and Section 4999 of reasonably acceptable to the Code or generate a refund of such taxesCompany. In the event that of any underpayment or overpayment under this Agreement (as determined after the Accounting Firmapplication of this Section 8), based upon controlling precedent the amount of such underpayment or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall overpayment will be promptly immediately paid by the Company to the Employee or for refunded by the benefit of Executive together Employee to the Company, as the case may be, with interest at the applicable federal rate provided for in Section 7872(f)(2)(A7872(f)(2) of the Code. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Employee (whether made hereunder or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the Code).

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution benefit received or to or for be received by Executive in connection with his Separation from Service with the benefit of ExecutiveCompany (collectively, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”"Severance Parachute Payments") would be nondeductible by (i) constitute a parachute payment within the Company for Federal income tax purposes because meaning of Section 280G of the CodeCode or any similar or successor provision to 280G and (ii) but for this Section 7.4, the Company shall reduce the aggregate present value of the Payments under this Agreement be subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the CodeCode or any similar or successor provision to Section 4999 (the "Excise Tax"), then such Severance Parachute Payments shall be reduced to the largest amount which would result in no portion of the Severance Parachute Payments being subject to the Excise Tax. If In the event any reduction of benefits is required pursuant to this Agreement, Executive shall be allowed to choose which benefits hereunder are reduced (e.g., reduction first from the Severance Payment, then from the vesting acceleration). Any determination as to whether a reduction in is required under this Agreement and as to the Payments is necessary, amount of such reduction shall occur be made in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible writing by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified independent public accountants of national standing selected appointed for this purpose by the Company (the “Accounting Firm”"Accountants") which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executiveprior to, or immediately following, the Company Change of Control, whose determinations shall cooperate with be conclusive and binding upon Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the CodeCompany for all purposes. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by If the Internal Revenue Service against Executive which (the Accounting Firm believes has a high probability of success "IRS") determines that an Overpayment has been made, promptly on notice and demand Executive shall repay the Severance Parachute Payments are subject to the Company any such Overpayment paid or distributed by Excise Tax, then the Company or any related corporation, as their exclusive remedy, shall seek to enforce the provisions of Section 7.5 hereof. Such enforcement of Section 7.5 below shall be the only remedy, under any and all applicable state and federal laws or otherwise, for Executive’s failure to reduce the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, Severance Parachute Payments so that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive portion thereof is subject to tax under the Excise Tax. The Company or related corporation shall reduce the Severance Parachute Payments in accordance with this Section 1 and Section 4999 of 7.4 only upon written notice by the Code or generate a refund Accountants indicating the amount of such taxesreduction, if any. In The Company shall bear all costs the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, Accountants may reasonably incur in connection with any such Underpayment shall be promptly paid calculations contemplated by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codethis Agreement.

Parachute Payments. (ai) Notwithstanding anything in this Agreement or any other provisions agreement between Executive and the Company (or any of this Agreement its subsidiaries or affiliates) to the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because provisions of Section 280G of the Code relating to “parachute payments” (as defined in the Code, ) shall be applicable to any payment or benefit received or to be received by Executive from the Company or its affiliates in connection with a change in the ownership or effective control of the Company within the meaning of Section 280G of the Code (a “Change of Control Transaction”) (collectively, “Payments”), then any such Payments shall reduce be equal to the aggregate present value Reduced Amount; where the “Reduced Amount” is (1) the largest portion of the Payments under this Agreement that will result in no portion of such Payments being subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code, or (2) the entire amount of the Payments otherwise scheduled to be paid (without reduction), whichever of the forgoing amounts after taking into account all applicable federal, state and local employment taxes, income taxes and the excise tax of Section 4999 of the Code (all computed at the highest applicable merged rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of all state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of Payments. If subsection (1) above applies and a reduction in reduced amount of the Payments is necessarypayable, then any reduction of Payments required by such reduction provision shall occur in the following order: (1i) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a))first, a reduction shall occur first with respect to amounts of any Payments that are not “deferred compensation” within the meaning of exempt from Section 409A in a manner the Company reasonably determines will provide Executive with the greatest post-reduction economic benefit and (ii) second, a reduction of the Code and then any Payments that are subject to Section 409A on a pro-rata basis or such other manner that complies with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible Section 409A, as reasonably determined by the Company. (ii) In connection with a Change of Control Transaction, the Company because of shall engage a certified public accounting firm (“Accountants”) at its expense to perform the calculations to determine if the Payments to Executive would reasonably be subject to Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company , and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuinguse commercially reasonable efforts to (1) cause the Accountants to finalize such calculations and (2) deliver such calculations and supporting documentation to Executive, and by no later than five (5) days before the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date closing of the transaction which cause the application Change of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunderControl Transaction. In the event it is later determined that a greater reduction in the Accounting FirmPayments should have been made to implement the objective and intent of this Section 2(e), based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such excess amount shall be payable returned immediately by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the CodeCompany.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution to or the severance and other benefits provided for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of in this Agreement or otherwise payable or provided to Executive (a i) constitute “Payment”) would be nondeductible by parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under and (ii) but for this Agreement to the Reduced Amount (as defined below) ifSection XI, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Executive’s benefits shall be 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 Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If Unless the Company and Executive otherwise agree in writing, any determination required under this Section XI will be made in writing by a national “Big Four” accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the “Accountants”), whose determination will be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required by this Section XI, 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 furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section XI. Any reduction in the Payments is necessary, such reduction payments and/or benefits required by this Section XI shall occur in the following order: (1) reduction of cash payments; and (2) cancellation of accelerated vesting reduction of equity acceleration (full-value awards other than first, then stock options; ), and (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any In the event that acceleration of vesting of equity awards is to be reduced, such category acceleration of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” vesting shall be an amount expressed cancelled in present value that maximizes the aggregate present value reverse order of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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 lawsgrant for Executive’s equity awards. The Accounting Firm shall make all determinations required to be made under this Section and Accountants shall provide their calculations, together with detailed supporting calculations documentation, to the Company and Executive within 30 thirty (30) calendar days after the Termination Date date on which the Accountants have been engaged to make such determinations or such earlier other time as is requested by the CompanyCompany or Executive. If the Accountants determine that no Excise Tax is payable with respect to a payment or benefit, it shall furnish the Company and provide Executive with an opinion reasonably acceptable to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return no Excise Tax will be imposed with respect to any Paymentssuch payment or benefit. Any such determination by good faith determinations of the Accounting Firm Accountants made hereunder shall be final, binding and conclusive upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that If any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable Executive would receive pursuant to the terms of this Agreement or pursuant to any other agreement with the Company following a change in the ownership or effective control of the Company or change in the ownership of a substantial portion of the assets of the Company (which change, as further defined in Section 280G of the Code and regulations promulgated thereunder (“Section 280G”), is referred to herein as a “Change in Control” from the Company or otherwise (a “Payment”) would be nondeductible by (i) constitute a “parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) ifG, and only if(ii) but for this section, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be 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 the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payments is necessaryPayment equals the Reduced Amount, such reduction shall occur in the following order: (1) reduction of cash payments, in the following order: (a) first, severance payments under this Agreement, (b) second, severance payments under any other agreement with the Company and (c) third, any other cash payments under any of the foregoing agreements; (2) cancellation of accelerated the acceleration of vesting of equity awards other than stock options, restricted stock, restricted stock units or any other awards that vest based on attainment of performance measures; (3) cancellation of accelerated the acceleration of vesting of stock options; , restricted stock and restricted stock units or any other awards that vest only based on Executive’s continued service to the Company, taking the last ones scheduled to vest (absent the acceleration) first, and (4) reduction other non-cash forms of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Codebenefits. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contraryor any other Company plan, arrangement or agreement (“Company Arrangement”), in the event that it shall be determined that any payment or distribution benefit by the Company or otherwise to or for the benefit of ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, all such payments and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxesbenefits, including the payments and benefits under Section 7 above, being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, then the Total Payments shall be reduced (but not below zero) to the minimum extent necessary to avoid the imposition of the Excise Tax on the Total Payments. If a reduction in the Payments is necessary, Any such reduction shall occur be made by the Company in its sole discretion consistent with the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning requirements of Section 409A of the Code and then with respect to amounts that are. The (“Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code409A”). (b) All determinations to be made Any determination required under this Section 6.9 8, including whether any payments or benefits are parachute payments, shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Companyin its sole discretion. The Employee shall provide the Company and Executive shall furnish to the Accounting Firm with such information and documents as the Accounting Firm Company may reasonably require request in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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 laws8. The Accounting Firm Company’s determinations shall make all determinations required to be made under this Section final and shall provide detailed supporting calculations to binding on the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this AgreementEmployee. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event it is later determined that to implement the Accounting Firmobjective and intent of this Section 8, based upon (i) a greater reduction in the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has Total Payments should have been made, the excess amount shall be returned promptly on notice and demand Executive shall repay by Employee to the Company any such Overpayment or (ii) a lesser reduction in the Total Payments should have been made, the excess amount shall be paid or distributed provided promptly by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; providedEmployee, however, that no such amount shall be payable by Executive to the Company if and except to the extent such payment the Company reasonably determines would not either reduce the amount on which Executive is subject to result in imposition of an excise tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.409A.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution to or the acceleration and severance benefits provided for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of in this Agreement or otherwise (a A) constitute “Payment”) would be nondeductible by parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (B) but for this paragraph, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code, then Employee’s benefits hereunder shall be payable either: (X) in full, or (Y) as to such lesser amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits hereunder, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If Any determination required under this paragraph shall be made in writing by the public accountants designated by the Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this paragraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this paragraph. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this paragraph. In the event that a reduction in the Payments payments and/or benefits is necessaryrequired under this section 4, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation reduction of accelerated acceleration of vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock optionsoptions and shares; and (43) reduction of other benefits paid to ExecutiveEmployee. Within any If the acceleration of vesting of options and shares is to be reduced, such category acceleration of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction vesting shall occur first with respect to amounts that are not “deferred compensation” within be cancelled in the meaning of Section 409A reverse order of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish highest price option grant or highest purchase price per share down to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on lowest priced option grant or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreementlowest purchase price per share. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of 7.2.1 Anything in this Agreement to the contrarycontrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any payment or distribution by the Company or its Affiliates to or for the benefit of Executivethe Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “PaymentTotal Payments”) would otherwise exceed the amount (the “Safe Harbor Amount”) that may be nondeductible received by the Company for Federal income Employee without the imposition of an excise tax purposes because under section 4999 of Section Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of section 280G of the Code, does not exceed the Company shall reduce the aggregate present value greater of the Payments under this Agreement to following dollar amounts (the Reduced Amount “Benefit Limit”): (as defined belowa) ifthe Safe Harbor Amount, and only if, reducing or (b) the Payments under this Agreement will provide Executive with a greater net greatest after-tax amount than would be payable to the case if no such reduction was made, Employee after taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the any excise tax imposed by Section under section 4999 of the Code. If a reduction in Code on the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the CodeTotal Payments. (b) 7.2.2 All determinations to be made under this Section 6.9 Subparagraph 7.2 shall be made at the Company’s expense by a an independent public accounting firm of certified public accountants of national standing selected chosen by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company). The Company and Executive shall furnish to the Accounting Firm In determining whether such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by ExecutiveBenefit Limit is exceeded, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services make a reasonable determination of the value to be provided by Executive (including refraining from performing services assigned to the restrictive covenants in effect for the Employee pursuant to a covenant not to compete) beforeParagraphs 8, on or after 10 and 11 of this Agreement, and the date amount of the transaction which cause the application of Section Employee’s potential parachute payment under section 280G of the Code such that payments in respect shall reduced by the value of such services may be considered those restrictive covenants to be “reasonable compensation” within the meaning of the regulations under Section extent consistent with section 280G of the Code. . 7.2.3 In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding event the Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of Section 280G and Section 4999, along with any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section section 280G of the Code at the time or section 4999 of the initial determination Code to any payment by the Company or its Affiliates, or assessment of tax under section 4999 of the Code with respect to any payment by the Company or its Affiliates, the Employee shall provide notice to the Company of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Company has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Company shall have the right to appoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the Employee shall fully cooperate with such representative as a condition of the Agreement with respect to such inquiry or assessment. 7.2.4 All of the fees and expenses of the Accounting Firm or in performing the Company hereunder, it is possible that Payments, as the case may be, will have been made determinations referred to in Subparagraph 7.2 shall be borne solely by the Company which should not have been made (“Overpayment”) or that additional Payments, as Company. 7.2.5 To the case may be, which will not have been made by extent a reduction to the Company could have been made (“Underpayment”), in each case, consistent with the calculations Total Payments is required to be made hereunderin accordance with this Subparagraph 7.2, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to the Employee. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the Accounting Firm, based upon order that provides the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay maximum economic benefit to the Company Employee. Notwithstanding the foregoing, any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount reduction shall be payable by Executive to made in a manner consistent with the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 requirements of section 409A of the Code or generate a refund of and where two economically equivalent amounts are subject to reduction but payable at different times, such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment amounts shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codereduced on a pro rata basis, but not below zero.

Parachute Payments. (i) Notwithstanding anything to the contrary in this Agreement, except as provided in paragraph 4.8(ii), if the payments and benefits provided for in this Agreement together with any other payments and benefits which Employee has the right to receive from UCH, Company and their affiliates (collectively, the “Payments”), would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the Payments shall be either (a) Notwithstanding any other provisions reduced (but not below zero) so that the present value of this Agreement the Payments will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of the Payments received by Employee shall be subject to the contraryexcise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee. The reduction of Payments, if any, shall be made by reducing the Payments in the event reverse order in which the Payments would be paid or provided (beginning with such payment or benefit that it would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time). The determination as to whether any such reduction in the Payments is necessary shall be determined made by the UCH Board Committee in good faith. If a reduced Payment is made or provided and, through error or otherwise, that Payment, when aggregated with other payments and benefits from Company (or its affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to Company. (ii) Notwithstanding anything to the contrary in this Agreement, if any payment payment, distribution or distribution provision of a benefit by Company to or for the benefit of ExecutiveEmployee, whether paid or payable or payable, distributed or distributable or provided or to be provided pursuant to the terms of this Agreement or otherwise (a “Payment”) ), would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section section 4999 of the Code. If a reduction Code in connection with the Payments is necessarychange of control of the Company effected by the Merger, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within or any such category of payments and benefits (that is, clauses (1), (2), (3) interest or (4) of this Section 6.9(a)), a reduction shall occur first penalties with respect to amounts that such excise tax (such excise tax, together with any such interest or penalties, are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect hereinafter collectively referred to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (as the “Accounting FirmExcise Tax”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive), the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to Employee on or distribute to as soon as practicable following the day on which the Excise Tax is remitted by or for on behalf of Employee (but not later than the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result end of the uncertainty taxable year following the year in which the application Excise Tax is remitted) an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of Section 280G all taxes (including any interest or penalties imposed with respect to such taxes), including any income taxes and Excise Taxes imposed on any Gross-up Payment, Employee retains an amount of the Code at Gross-up Payment (taking into account any similar gross-up payments to Employee under any stock incentive or other benefit plan or program of Company) equal to the time of Excise Tax imposed upon the Payments. Company and Employee shall make an initial determination by as to whether a Gross-up Payment is required and the Accounting Firm or the amount of any such Gross-up Payment. Employee shall notify Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion writing of a deficiency any claim by the Internal Revenue Service against Executive which which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Employee) within 10 business days after the Accounting Firm believes has a high probability receipt of success determines that an Overpayment has been made, promptly on notice and demand Executive such claim. Company shall repay notify Employee in writing at least 10 business days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company any decides to contest such Overpayment paid or distributed by the claim, Employee shall cooperate fully with Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Codesuch action; provided, however, that no Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such amount action and shall be payable by Executive indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a claim, Employee receives a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly amount paid by Company with respect to such claim, Employee shall promptly pay such refund to Company. If Company fails to timely notify Employee whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Employee the Company portion of such claim, if any, which it has not previously paid to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the CodeEmployee.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that If any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable (including payments and benefits pursuant to this Agreement) that Executive would receive in connection with a Change of Control from the terms of this Agreement Company or otherwise (a “Transaction Payment”) would be nondeductible by (i) constitute a “parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Paragraph , the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Transaction Payment are paid to Executive, which of the following two alternative forms of payment would result in Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in the Payments is necessary, such reduction payments and/or benefits shall occur in the following order: manner that results in the greatest economic benefit to Executive as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be reduced pro rata. Unless Executive and the Company otherwise agree in writing, any determination required under this Paragraph shall be made in writing by the Company’s independent public accountants (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1the “Accountants”), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” whose determination shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by conclusive and binding upon Executive and the Company because for all purposes. For purposes of Section making the calculations required by this Paragraph , 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. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by . Executive and the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this SectionParagraph. To the extent requested by Executive, the The Company shall cooperate bear all costs the Accountants may reasonably incur in connection with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided any calculations contemplated by this Paragraph as well as any costs incurred by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after with the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations Accountants for tax planning under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section Sections 280G and Section 4999, along with any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (ai) Notwithstanding any other provisions of this Agreement to the contraryabove, in the event that it shall be determined that if any payment or distribution to benefit that Executive would receive under this Schedule, when combined with any other payment or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise he receives that is contingent upon a Change in Control (a “Payment”) would be nondeductible by (i) constitute a “parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under and (ii) but for this Agreement sentence, be subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction Code (“Excise Tax”), then such Payment shall be either (x) the full amount of such Payment or (y) such lesser amount (with Payments being reduced in the Payments order and priority established by the Committee) as would result in no portion of the Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes, and the Excise Tax results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. Executive shall be solely responsible for the payment of all personal tax liability that is necessary, such reduction shall occur in incurred as a result of the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments received under this Agreement without causing any Payment to Schedule, and Executive will not be nondeductible reimbursed by the Company because of Section 280G of the Codefor any such payments. (bii) All The Company shall attempt to cause its accountants to make all of the determinations required to be made under this Section 6.9 shall be made at 2(c)(i), or, in the event the Company’s expense by a firm of certified public accountants of national standing selected by will not perform such service, the Company (may select another professional services firm to perform the “Accounting Firm”) which calculations. the Company shall request that the accountants or firm provide detailed supporting calculations both to the Company and Executive prior to the Change in Control if administratively feasible or subsequent to the Change in Control if events occur that result in parachute payments to Executive at that time. For purposes of making the calculations required by Section 2(c), the accountants or firm may be make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith determinations concerning the firm regularly auditing the financial statements application of the CompanyCode. The Company and Executive shall furnish to the Accounting Firm accountants or firm such information and documents as the Accounting Firm accountants or firm may reasonably require request in order to make a determination under this SectionSection 2(c). To the extent requested by Executive, the The Company shall cooperate with Executive bear all costs the accountants or firm may reasonably incur in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section 280G and Section 4999, along connection with any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under this calculations contemplated by Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments2(c). Any such determination by the Accounting Firm Company’s accountants or other firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) , and 6.9, within five business days thereafter, the Company shall pay have no liability to or distribute to or Executive for the benefit determinations of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent its accountants or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codefirm.

Parachute Payments. (a) Notwithstanding any other provisions of anything in this Agreement to the contrary, in the event that it the Company’s outside, independent accountants shall be determined determine that any payment or distribution to or for the benefit of Executive, whether amount paid or payable or distributed or distributable to the Executive pursuant to the terms of this Agreement or otherwise (a the “PaymentAgreement Payments”) would be nondeductible by shall, as a result of a change in the ownership or effective control of the Company for Federal income tax purposes because or in the ownership of a substantial portion of the assets of the Company, constitute a parachute payment within the meaning of Section 280G of the Code, and the aggregate of such parachute payments and any other amounts paid or distributed to the Executive from any other plans or arrangements maintained by the Company or its affiliates (such other payments together with the Agreement Payments shall be referred to as the “Total Payments”) would more likely than not, in the opinion of the Company’s accountants, cause the Executive to be subject to the Excise Tax, the Agreement Payments shall be reduced, eliminated, or postponed in such amounts as are required to reduce the aggregate “present value of the Payments under this Agreement to the Reduced Amount value” (as that term is defined belowin Section 280G(d)(4) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code) of such Agreement Payments to one dollar less than an amount equal to three times the Executive’s “base amount” (as that term is defined in Section 280G(b)(3)(A) and (d)(1) and (2)) to the end that the Executive is not subject to the Excise Tax with respect to the Agreement Payments. If a To achieve such required reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executivevalue, the Company shall cooperate with Executive in good faith in valuingdetermine what items of compensation (payable under this Agreement) constituting the parachute payments shall be reduced, eliminated or postponed, the amount of such reduction, elimination or postponement, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date period of the transaction which cause the application of Section 280G of the Code each such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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 lawspostponement. The Accounting Firm Company shall make all determinations required to be made under this Section and shall provide detailed supporting calculations promptly notify the Executive of its determinations. If an amount has been paid or distributed to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) paid or that additional Paymentsdistributed due to the required reduction in aggregate present value, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay promptly return such amount to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive (together with interest at the applicable Federal rate provided for set forth in Section 7872(f)(2)(A1274(b)(2)(B) of the Code; provided). For purposes of determining whether and the extent to which the Total Payments would more likely than not cause the Executive to be subject to the Excise Tax, howeverno portion of the Total Payments, that no such amount the receipt of which the Executive has effectively waived in writing, shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codetaken into account.

Parachute Payments. (a) Notwithstanding Optionee shall bear all expense of, and be solely responsible for, any other provisions excise tax imposed by Section 4999 of this Agreement to the contraryCode (the “Excise Tax”); provided, in the event that it shall be determined however, that any payment or distribution benefit received or to or for the benefit of Executive, be received by Optionee (whether paid or payable or distributed or distributable pursuant to under the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company or any of its affiliates) (collectively, the “Payments”) that would constitute a “Payment”) would be nondeductible by parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement be reduced to the Reduced Amount (as defined below) if, and extent necessary so that no portion thereof shall be subject to the Excise Tax but only if, reducing by reason of such reduction, the Payments under this Agreement will provide Executive with a greater net after-tax amount than benefit received by Optionee exceeds the net after-tax benefit that would be the case received by Optionee if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in payments or benefits constituting “parachute payments” is necessary under the preceding sentence, the reduction shall be made in the manner that results in the greatest economic benefit for Optionee. (b) The “net after-tax benefit” shall mean (i) the Payments that Optionee receives or is necessary, such reduction shall occur in then entitled to receive from the following order: (1) reduction of cash Company that would constitute “parachute payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. , less (bii) All determinations to be made under this Section 6.9 shall be made at the Company’s expense amount of all federal, state and local income and employment taxes payable by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return Optionee with respect to any Payments. Any such determination by the Accounting Firm foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be binding upon paid to Optionee (based on the Company rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to the payments and Executive. Subject to Sections 6.1(cbenefits described in Section 23(a) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreementabove. (c) As a result The independent registered public accounting firm engaged by the Company for general audit purposes as of the uncertainty day prior to the effective date of the event described in the application of Section 280G 280G(b)(2)(A)(i) of the Code at shall perform the time of foregoing calculations. If the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made independent registered public accounting firm so engaged by the Company which should not have been made (“Overpayment”) is serving as accountant or that additional Paymentsauditor for the individual, as the case may beentity or group effecting such change in control, which will not have been made by change of ownership or similar transaction, the Company could have been made (“Underpayment”), in each case, consistent shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the calculations determinations by such independent registered public accounting firm required to be made hereunder. In . (d) The independent registered public accounting firm engaged to make the event that the Accounting Firmdeterminations hereunder shall provide its calculations, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been madetogether with detailed supporting documentation, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed and Optionee within thirty (30) calendar days after the date on which Optionee’s right to a Payment is triggered (if requested at that time by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(AOptionee) of the Code; provided, however, that no or such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid time as reasonably requested by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) Optionee. Any good faith determinations of the Codeindependent registered public accounting firm made hereunder shall be final, binding and conclusive upon the Company and Optionee.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall the any payments or benefits received or to be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable received by Executive pursuant to the terms of this Agreement or otherwise (a a) constitute “Payment”) would be nondeductible by parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, as determined by the accounting firm that audited the Company shall reduce prior to the aggregate present value Change of Control or another nationally known accounting or employee benefits consulting firm selected by the Company prior to such Change of Control (the “Accounting Firm”) and (b) but for this Section 4.4, would, in the judgment of the Payments under this Agreement Accounting Firm, be subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because reason of Section 280G of the Code. (b) All determinations to be made , then Executive’s benefits under this Section 6.9 Agreement shall be made at payable either: (i) in full, or (ii) as to such lesser amount which would result in no portion of such payments or benefits being subject to the Company’s expense by a firm excise tax under Section 4999 of certified public accountants of national standing selected the Code, as determined by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements , whichever of the Company. The Company foregoing amounts, taking into account the applicable federal, state and Executive shall furnish to local income and employment taxes and the Accounting Firm such information and documents as excise tax imposed by Section 4999, results in the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested receipt by Executive, on an after-tax basis, of the Company shall cooperate with Executive in good faith in valuinggreatest amount of benefits under this Agreement, and as determined by the Accounting Firm shall valueFirm, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on notwithstanding that all or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect some portion of such services benefits may be considered to be “reasonable compensation” within the meaning of the regulations taxable under Section 280G 4999 of the Code. In making the event that a lesser amount is paid under clause (b)(ii) above, then the elements of Executive’s payments hereunder shall be reduced in such order (A) as the Company determines, in its determinations hereundersole discretion, has the least economic detriment to Executive and (B) which does not result in the imposition of any tax penalties under Section 409A on Executive. To the extent the economic impact of reducing payments from one or more elements is equivalent and subject to clause (B) of the preceding sentence, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to reduction may be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made pro rata by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codeits sole discretion.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments payments to the Employee under this Agreement to the Reduced Amount (as defined below) ifAgreement, and only ifany other plan, reducing program, or arrangement maintained by the Payments under this Agreement will provide Executive with Company or a greater net after-tax amount than would be the case if no such reduction was madeSubsidiary, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: constitutes an "excess parachute 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 options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A 280G(b)(1) of the Code Code) and then with respect the excise tax on such payment would cause the net parachute payments (after taking into account federal, state and local income and excise taxes) to amounts that are. The “Reduced Amount” shall which the Employee otherwise would be an amount expressed in present value that maximizes entitled to be less than what the aggregate Employee would have netted (after taking into account federal, state and local income taxes) had the present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of Employee's total parachute payments equaled One Dollar ($1.00) less than three (3) times the Code. Employee's "base amount" (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Code Section 280G of the Code. In making its determinations hereunder280(G)(b)(3)(A)), the Accounting Firm Employee's total "parachute payments" (within the meaning of Code Section 280G(b)(2)(A)) shall apply reasonablebe reduced (by the minimum possible amount) so that their aggregate present value equals One Dollar ($1.00) less than three (3) times such base amount. For purposes of this calculation, good faith interpretations regarding it shall be assumed that the applicability of Section 280G Employee's tax rate will be the maximum marginal federal, state and Section 4999local income tax rate on earned income, along with any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required such maximum federal rate to be made under this computed with regard to Code Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”1(g), in each case, consistent with the calculations required to be made hereunderif applicable. In the event that the Accounting Firm, based upon Employee and the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay Company are unable to agree as to the Company any such Overpayment paid amount of the reduction described above, if any, the Employee shall select a law firm or distributed accounting firm from among those regularly consulted (during the twelve (12) month period immediately prior to the change in control that resulted in the characterization of the payments as parachute payments) by the Company to regarding federal income tax or for employee benefit matters, and such law firm or accounting firm shall determine the benefit amount of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount reduction and such determination shall be payable by Executive to final and binding upon the Company if Employee and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the CodeCompany.

Parachute Payments. (a) Notwithstanding any other provisions of Anything in this Agreement to the contrarycontrary notwithstanding, in the event that it shall be determined that the amount of any compensation, payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (otherwise, calculated in a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of manner consistent with Section 280G of the CodeCode and the applicable regulations thereunder (the “Payments”), would be subject to the Excise Tax (as defined below), the Company following provisions shall reduce apply: (i) If the aggregate present value Payments, reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes payable by Executive on the amount of the Payments under this Agreement to which are in excess of the Reduced Threshold Amount (as defined below), are greater than or equal to the Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement. (ii) ifIf the Threshold Amount is less than (x) the Payments, and only if, reducing but greater than (y) the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be reduced by the case if no such reduction was made, taking into account sum of (1) the applicable federalExcise Tax and (2) the total of the Federal, state, and local income and foreign incomeemployment taxes on the amount of the Payments which are in excess of the Threshold Amount, employment then the Payments shall be reduced (but not below zero) to the minimum extent necessary so that the sum of all Payments shall not exceed the Threshold Amount. In such event, the Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A of the Code; (B) cash payments subject to Section 409A of the Code (to the extent such reduction does not result in tax penalties to Executive); (C) equity-based payments and other taxesacceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., including in installments, etc.), then the payments shall be reduced in reverse chronological order. No reductions shall be made under this Subparagraph 9(a)(ii) unless agreed to by Executive. (b) For the purposes of this Paragraph 9, “Threshold Amount” shall mean three times Executive’s “base amount” within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00); and “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) interest or (4) of this Section 6.9(a)), a reduction shall occur first penalties incurred by Executive with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Codesuch excise tax. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement anything to the contrarycontrary contained in this Agreement, in to the event that it shall be determined extent that any payment amount, stock option, restricted stock, RSUs, other equity awards or distribution to or for the benefit of Executive, whether benefits paid or payable or distributed or distributable to the Executive pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by any other agreement or arrangement between the Company for Federal income tax purposes because and the Executive (collectively, the "280G Payments") (a) constitute a "parachute payment" within the meaning of Section 280G of the CodeCode and (b) but for this Section 21, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction , then the 280G Payments shall be payable either (i) in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) full or (4ii) in such lesser amount which would result in no portion of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section such 280G Payments being subject to excise tax under Section 4999 of the Code. ; whichever of the foregoing amounts, taking into account the applicable federal, state and local income or excise taxes (bincluding the excise tax imposed by Section 4999) All determinations to results in the Executive’s receipt on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be made taxable under Section 4999 of the Code. Unless the Executive and the Company otherwise agree in writing, any determination required under this Section 6.9 shall be made at the Company’s expense in writing by a firm of certified an independent public accountants of national standing accountant selected by the Company (the “Accounting Firm”) which "Accountants"), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may be make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the firm regularly auditing the financial statements application of Sections 280G and 4999 of the CompanyCode. The Company and the Executive shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section. To the extent requested by Executive, the The Company shall cooperate with Executive bear all costs the Accountants may reasonably incur in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section 280G and Section 4999, along connection with any other applicable portions of calculations contemplated by this Section, as well as any reasonable legal or accountant expenses, or any additional taxes, that the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time may incur as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been any calculation errors made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by Accountant and/or the Company could have been made (“Underpayment”), in each case, consistent connection with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Code Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid excise tax analysis contemplated by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codethis Section.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution to the payments and benefits provided for in this Agreement and the payments and/or benefits provided to, or for the benefit of Executiveof, whether paid Executive under any other employer plan or payable agreement (such payments or distributed or distributable pursuant benefits are hereinafter collectively referred to as the terms of this Agreement or otherwise (a “PaymentBenefits”) would be nondeductible by (i) constitute “parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeCode and (ii) but for this Section 5.5, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Code (the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1“Excise Tax”), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within then the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” Benefits shall be an amount expressed either: (a) delivered in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code.full, or (b) All determinations delivered as to such lesser extent which would result in no portion of such Benefits being subject to the Excise Tax (such reduced amount is hereinafter referred to as the “Limited Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of Benefits, notwithstanding that all or some portion of such Benefits may be subject to the Excise Tax. If applicable, in order to effectuate the Limited Amount, the Company shall first reduce those Benefits which are not payable in cash and then reduce cash payments, in each case in reverse order beginning with Benefits which are to be made under this Section 6.9 paid the farthest in time from the date of determination that the Benefits will be limited by (b) above. A determination as to whether the Benefits shall be reduced to pursuant to (b) above and the amount of the Limited Benefit shall be made at by the Company’s expense by a independent public accountants or another certified public accounting firm of certified public accountants of national standing selected reputation designated by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of at the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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’s expense. The Accounting Firm shall make all determinations required to be made under this Section and shall provide its determination, together with detailed supporting calculations regarding the amount of any relevant matters, both to the Company and to Executive within 30 seven (7) business days after of the Termination Date Executive’s separation from service, if applicable, or such earlier time as is requested by the Company, . Such determination shall be made by the Accountants using reasonable good faith interpretations of the Code and provide an opinion to Executive that he with reasonable input from Executive’s accountant or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Paymentsaccounting firm. Any such determination by the Accounting Firm Accountants shall be binding upon the Company and the Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreementabsent manifest error. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (ai) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “PaymentPayments”) ), would be nondeductible by constitute an “excess parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeCode (after taking into consideration any mitigating factors such as the value of any non-competition restrictions or similar factors), the Company shall reduce (but not below zero) the aggregate present value of the Payments under this the Agreement to the Reduced Amount (as defined below) if), and only if, if reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made. The Payments shall be reduced as described in the preceding sentence only if (A) the net amount of the Payments, taking into account as so reduced (and after subtracting the applicable net amount of federal, statestate and local income and payroll taxes on the reduced Payments), local and foreign income, employment and other taxes, including is greater than or equal to (B) the excise tax imposed by Section 4999 net amount of the Code. If a Payments without such reduction in (but after subtracting the net amount of federal, state and local income and payroll taxes on the Payments is necessary, such reduction shall occur in and the following order: amount of Excise Tax (1as defined below) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first which Executive would be subject with respect to the unreduced Payments). Only amounts that are not “deferred compensation” within the meaning of payable under this Agreement shall be reduced pursuant to this Section 1(f), and any reduction shall be made in accordance with Section 409A of the Code and then with respect to amounts that are. Code. (ii) The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment under this Agreement to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish subject to the Accounting Firm such information and documents as the Accounting Firm may reasonably require Excise Tax, determined in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate accordance with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to competeSection 280G(d)(4) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, The term “Excise Tax” means the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive imposed under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting FirmCode, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with any interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codeor penalties imposed with respect to such excise tax.

Parachute Payments. (a) Notwithstanding any other provisions of anything in this Agreement to the contrary, in the event that it the Company’s outside, independent accountants shall be determined determine that any payment or distribution the termination compensation payable to or for the benefit of Executive, whether paid or payable or distributed or distributable Executive pursuant to Section 10.1 (the terms of this “Agreement or otherwise (a “PaymentPayments”) would be nondeductible by shall, as a result of a change in the ownership or effective control of the Company for Federal income tax purposes because or in the ownership of a substantial portion of the assets of the Company, constitute a parachute payment within the meaning of Section 280G of the Code, and the aggregate of such parachute payments and any other amounts paid or distributed to the Executive from any other plans or arrangements maintained by the Company or its affiliates (such other payments together with the Agreement Payments shall reduce be referred to as the aggregate present value “Total Payments”) would more likely than not, in the opinion of the Payments under this Agreement Company’s accountants, cause the Executive to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by on excess parachute payments under Section 4999 of the Code (the “Excise Tax”), the termination compensation payable pursuant to Section 10.1 shall be reduced in such amount as is required to reduce the aggregate “present value” (as that term is defined in Section 280G(d)(4) of the Code. If a reduction in ) of the Total Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other to one dollar less than stock options; three (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits times the Executive’s Base Amount to the end that the Executive is not subject to the Excise Tax. If an amount has been paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Paymentspaid due to the required reduction in aggregate present value, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay promptly return such amount to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive (together with interest at the applicable Federal rate provided for set forth in Section 7872(f)(2)(A1274(b)(2)(B) of the Code; provided). For purposes of determining whether and the extent to which the Total Payments would more likely than not cause the Executive to be subject to the Excise Tax, howeverno portion of the Total Payments, that no such amount the receipt of which the Executive has effectively waived in writing, shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codetaken into account.

Parachute Payments. (a) Notwithstanding any other provisions of 7.2.1 Anything in this Agreement to the contrarycontrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any payment or distribution by the Company or its Affiliates to or for the benefit of Executivethe Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “PaymentTotal Payments”) would otherwise exceed the amount (the “Safe Harbor Amount”) that may be nondeductible received by the Company for Federal income Employee without the imposition of an excise tax purposes because under section 4999 of Section Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of section 280G of the Code, does not exceed the Company shall reduce the aggregate present value greater of the Payments under this Agreement to following dollar amounts (the Reduced Amount “Benefit Limit”): (as defined belowa) ifthe Safe Harbor Amount, and only if, reducing or (b) the Payments under this Agreement will provide Executive with a greater net greatest after-tax amount than would be payable to the case if no such reduction was made, Employee after taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the any excise tax imposed by Section under section 4999 of the Code. If a reduction in Code on the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the CodeTotal Payments. (b) 7.2.2 All determinations to be made under this Section 6.9 Paragraph 7.2 shall be made at the Company’s expense by a an independent public accounting firm of certified public accountants of national standing selected chosen by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company). The Company and Executive shall furnish to the Accounting Firm In determining whether such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by ExecutiveBenefit Limit is exceeded, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services make a reasonable determination of the value to be provided by Executive (including refraining from performing services assigned to the restrictive covenants in effect for the Employee pursuant to a covenant not to compete) beforeParagraphs 8, on or after 10 and 11 of this Agreement, and the date amount of the transaction which cause the application of Section Employee’s potential parachute payment under section 280G of the Code such that payments in respect shall reduced by the value of such services may be considered those restrictive covenants to be “reasonable compensation” within the meaning of the regulations under Section extent consistent with section 280G of the Code. . 7.2.3 In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding event the Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of Section 280G and Section 4999, along with any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section section 280G of the Code at the time or section 4999 of the initial determination Code to any payment by the Company or its Affiliates, or assessment of tax under section 4999 of the Code with respect to any payment by the Company or its Affiliates, the Employee shall provide notice to the Company of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Company has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Company shall have the right to appoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the Employee shall fully cooperate with such representative as a condition of the Agreement with respect to such inquiry or assessment. 7.2.4 All of the fees and expenses of the Accounting Firm or in performing the Company hereunder, it is possible that Payments, as the case may be, will have been made determinations referred to in Paragraph 7.2 shall be borne solely by the Company which should not have been made (“Overpayment”) or that additional Payments, as Company. 7.2.5 To the case may be, which will not have been made by extent a reduction to the Company could have been made (“Underpayment”), in each case, consistent with the calculations Total Payments is required to be made hereunderin accordance with this Paragraph 7.2, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to the Employee. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the Accounting Firm, based upon order that provides the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay maximum economic benefit to the Company Employee. Notwithstanding the foregoing, any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount reduction shall be payable by Executive to made in a manner consistent with the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 requirements of section 409A of the Code or generate a refund of and where two economically equivalent amounts are subject to reduction but payable at different times, such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment amounts shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codereduced on a pro rata basis, but not below zero.

Parachute Payments. Subject to Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), if the board of directors of ProAssurance determines that an excise tax under Section 4999 (“Excise Tax”) would be due, the Executive’s Severance Benefits under this Agreement shall be limited to the amount necessary to avoid the Excise Tax only if applying such a limit results in a greater net benefit to the Executive than would have resulted had the benefits not been limited and an Excise Tax paid. For purposes of making such computation: (a) Notwithstanding any Any other provisions payments or benefits received or to be received by the Executive in connection with the Change of this Agreement to Control or the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit Executive’s termination of Executive, employment (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by any other plan, arrangement, or agreement with the Company for Federal income tax purposes because of Section 280G of the CodeCompanies, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive or with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction any person whose actions result in the Payments is necessary, such reduction Change of Control) shall occur in the following order: (1) reduction of cash be treated as “parachute payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code and then with respect to amounts that are. The “Reduced Amount” shall be treated as subject to the Excise Tax, unless, in the opinion of tax counsel selected by ProAssurance’s independent auditors, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such other payments or benefits (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or such other payments or benefits (in whole or in part) are otherwise not subject to the Excise Tax. In the event an Excise Tax is due, because of payments made under this Agreement, the Executive shall be responsible for paying said Excise Tax. (b) The amount expressed in present value of the Severance Benefits that maximizes will be treated as subject to the aggregate present Excise Tax shall be equal to the lesser of: (i) the total amount of the Severance Benefits; or (ii) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying subparagraph (a) above). (c) The value of Payments under this Agreement without causing any Payment to noncash benefits or any deferred payment or benefit shall be nondeductible determined by ProAssurance’s independent auditors in accordance with the Company because principles of Section 280G Sections 280G(d)(3) and (4) of the Code. (bd) All determinations The Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in a calendar year in which the Severance Benefits are to be made under this Section 6.9 shall be made paid, and state and local income taxes at the Company’s expense by a firm highest marginal rate of certified public accountants of national standing selected by taxation in the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements state and locality of the Company. The Company and Executive shall furnish to Executive’s residence on the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by ExecutiveDate of Termination, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date net of the transaction which cause the application of Section 280G of the Code such maximum reduction in federal income taxes that payments in respect could be obtained from deduction of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section 280G state and Section 4999, along with any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such local taxes. In the event the Internal Revenue Service adjusts the computation in subparagraphs (a) through (d) above, so that the Accounting FirmExecutive did not receive the greatest net benefit, based upon controlling precedent or other substantial authoritythe Companies shall reimburse the Executive for the amount necessary to make the payment of Severance Benefits to the Executive to the extent permitted hereunder, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid plus a market rate of interest as determined by the Company to or for the benefit Board of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) Directors of the CodeProAssurance.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution to the payments and benefits provided for in this Agreement and the payments and/or benefits provided to, or for the benefit of Executiveof, whether paid Executive under any other employer plan or payable agreement (such payments or distributed or distributable pursuant benefits are hereinafter collectively referred to as the terms of this Agreement or otherwise (a “PaymentBenefits”) would be nondeductible by (i) constitute “parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeCode and (ii) but for this Section 5.5, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction in Code (the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1“Excise Tax”), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within then the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” Benefits shall be an amount expressed either: (a) delivered in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code.full, or (b) All determinations delivered as to such lesser extent which would result in no portion of such Benefits being subject to the Excise Tax (such reduced amount is hereinafter referred to as the “Limited Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of Benefits, notwithstanding that all or some portion of such Benefits may be subject to the Excise Tax. If applicable, in order to effectuate the Limited Amount, the Company shall first reduce those Benefits which are not payable in cash and then reduce cash payments, in each case in reverse order beginning with Benefits which are to be made under this Section 6.9 paid the farthest in time from the date of determination that the Benefits will be limited by (b) above. A determination as to whether the Benefits shall be reduced to pursuant to (b) above and the amount of the Limited Benefit shall be made at by the Company’s expense by a independent public accountants or another certified public accounting firm of certified public accountants of national standing selected reputation designated by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of at the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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’s expense. The Accounting Firm shall make all determinations required to be made under this Section and shall provide its determination, together with detailed supporting calculations regarding the amount of any relevant matters, both to the Company and to Executive within 30 seven (7) business days after of the Termination Date Executive’s separation from service, if applicable, or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Such determination shall be made by the Accountants using reasonable good faith interpretations of the Code. Any such determination by the Accounting Firm Accountants shall be binding upon the Company and the Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreementabsent manifest error. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (ai) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “PaymentPayments”) ), would be nondeductible by constitute an “excess parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeCode (after taking into consideration any mitigating factors such as the value of any non-competition restrictions or similar factors), the Company shall reduce (but not below zero) the aggregate present value of the Payments under this the Agreement to the Reduced Amount (as defined below) if), and only if, if reducing the Payments under this Agreement will provide the Executive with a greater net after-tax amount than would be the case if no such reduction was made. The Payments shall be reduced as described in the preceding sentence only if (A) the net amount of the Payments, taking into account as so reduced (and after subtracting the applicable net amount of federal, statestate and local income and payroll taxes on the reduced Payments), local and foreign income, employment and other taxes, including is greater than or equal to (B) the excise tax imposed by Section 4999 net amount of the Code. If a Payments without such reduction in (but after subtracting the net amount of federal, state and local income and payroll taxes on the Payments is necessary, such reduction shall occur in and the following order: amount of Excise Tax (1as defined below) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first which the Executive would be subject with respect to the unreduced Payments). Only amounts that are not “deferred compensation” within the meaning of payable under this Agreement shall be reduced pursuant to this Section 5(l), and any reduction shall be made in accordance with Section 409A of the Code and then with respect to amounts that are. Code. (ii) The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment under this Agreement to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish subject to the Accounting Firm such information and documents as the Accounting Firm may reasonably require Excise Tax, determined in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate accordance with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to competeSection 280G(d)(4) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, The term “Excise Tax” means the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive imposed under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting FirmCode, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with any interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codeor penalties imposed with respect to such excise tax.

Parachute Payments. (a) Notwithstanding any other provisions provision of this Agreement, if all or any portion of the payments and benefits provided under this Agreement to the contrary, in the event that it shall be determined that (including without limitation any accelerated vesting and any other payment or distribution to benefit received in connection with a Change in Control or for the benefit termination of Executive’s employment), or any other payments and benefits which Executive receives or is entitled to receive under any plan, program, arrangement or other agreement, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by from the Company for Federal income tax purposes because or an affiliate of the Company, or any combination of the foregoing, would constitute an excess “parachute payment” within the meaning of Section 280G of the CodeCode (whether or not under an existing plan, arrangement or other agreement) (each such parachute payment, a “Parachute Payment”), and would result in the Company shall reduce the aggregate present value imposition on Executive of an excise tax under Section 4999 of the Payments Code or any successor thereto, then the following provisions shall apply: (1) If the Parachute Payment, reduced by the sum of (i) the Excise Tax (as defined below) and (ii) the total of the federal, state, and local income and employment taxes payable by Executive on the amount of the Parachute Payment which are in excess of the Threshold Amount (as defined below), are greater than or equal to the Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement to Agreement. (2) If the Reduced Threshold Amount (as defined below) ifis less than (x) the Parachute Payment, but greater than (y) the Parachute Payment reduced by the sum of (1) the Excise Tax and only if, reducing (2) the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be total of the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income1ocal income and employment taxes on the amount of the Parachute Payment which are in excess of the Threshold Amount, employment then the Parachute Payment shall be reduced (but not below zero) to the extent necessary so that the sum of all Parachute Payments shall not exceed the Threshold Amount. In such event, the Parachute Payment shall be reduced in the following order: (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and other taxesacceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., including in installments, etc.), then the payments shall be reduced in reverse chronological order. (b) For the purposes of this Section 11, “Threshold Amount” shall mean three times Executive’s “base amount” within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00); and “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) interest or (4) of this Section 6.9(a)), a reduction shall occur first penalties incurred by Executive with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Codesuch excise tax. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) i. Notwithstanding any other provisions of anything in this Agreement or elsewhere to the contrary, in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (each, a “Payment”) ), would be nondeductible by constitute an “excess parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall will reduce (but not below zero) the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if), and only if, if reducing the Payments under this Agreement will provide Executive with a greater net afterNet After-tax amount than would be the case Tax Benefit that exceeds his Net After-Tax Benefit if no such reduction was is not made. To the extent such Payments are required to be so reduced, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur they will be reduced in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid order and, to Executive. Within any such category of payments and benefits (that isthe extent applicable, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first in accordance with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then Code, such that any such reduction does not result in Executive incurring any income inclusion, additional tax, or interest under Section 409A: (i) Payments that are payable in cash, with respect to amounts that areare payable last reduced first; (ii) Payments due in respect of any equity or equity derivatives included in such calculation at their full value under Section 280G (rather than their accelerated value), with amounts that are payable last reduced first; and (iii) Payments due in respect of any equity or equity derivatives included in such calculation at their accelerated value under Section 280G, with the highest per share values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24). If the same payment or benefit date applies to more than one payment or benefit within any of the foregoing categories, the reduction will apply to each such payment or benefit on a pro rata basis. ii. The “Reduced Amount” shall will be an amount expressed in present value that maximizes the aggregate expected net after-tax present value of the Payments under this Agreement without causing any Payment under this Agreement to be nondeductible by subject to the Company because of Excise Tax. The term “Excise Tax” means the excise tax imposed under Section 280G 4999 of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section 280G and Section 4999, along together with any other applicable portions of the Code interest or other tax laws. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return penalties imposed with respect to any Paymentssuch excise tax. Any such determination by The term “Net After-Tax Benefit” means the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts present value (as are then due to Executive under this Agreement. (c) As a result of the uncertainty determined in the application of accordance with Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A280G(d)(4) of the Code; provided, however, that no such amount shall be payable by ) of the Payments net of all taxes imposed on Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax with respect thereto under Section Sections 1 and Section 4999 of the Code or generate a refund and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of such taxes. In the event Code and under the state and local laws that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company applied to or Executive’s taxable income for the benefit of immediately preceding taxable year, or such other rate(s) as Executive together with interest at certifies are likely to apply to him in the applicable federal rate provided for in Section 7872(f)(2)(A) of the Coderelevant tax year(s).

Parachute Payments. (a) Notwithstanding any other provisions provision of this Agreement, if all or any portion of the payments and benefits provided under this Agreement to the contrary, in the event that it shall be determined that (including without limitation any accelerated vesting and any other payment or distribution to benefit received in connection with a Change in Control or for the benefit termination of Executive’s employment), or any other payments and benefits which Executive receives or is entitled to receive under any plan, program, arrangement or other agreement, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by from the Company for Federal income tax purposes because or an affiliate of the Company, or any combination of the foregoing, would constitute an excess “parachute payment” within the meaning of Section 280G of the CodeCode (whether or not under an existing plan, arrangement or other agreement) (each such parachute payment, a “Parachute Payment”), and would result in the Company shall reduce the aggregate present value imposition on Executive of an excise tax under Section 4999 of the Payments Code or any successor thereto, then the following provisions shall apply: (1) If the Parachute Payment, reduced by the sum of (i) the Excise Tax (as defined below) and (ii) the total of the federal, state, and local income and employment taxes payable by Executive on the amount of the Parachute Payment which are in excess of the Threshold Amount (as defined below), are greater than or equal to the Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement to Agreement. (2) If the Reduced Threshold Amount (as defined below) ifis less than (x) the Parachute Payment, but greater than (y) the Parachute Payment reduced by the sum of (1) the Excise Tax and only if, reducing (2) the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be total of the case if no such reduction was made, taking into account the applicable federal, state, and local income and foreign incomeemployment taxes on the amount of the Parachute Payment which are in excess of the Threshold Amount, employment then the Parachute Payment shall be reduced (but not below zero) to the extent necessary so that the sum of all Parachute Payments shall not exceed the Threshold Amount. In such event, the Parachute Payment shall be reduced in the following order: (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and other taxesacceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., including in installments, etc.), then the payments shall be reduced in reverse chronological order. (b) For the purposes of this Section 11, “Threshold Amount” shall mean three times Executive’s “base amount” within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00); and “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) interest or (4) of this Section 6.9(a)), a reduction shall occur first penalties incurred by Executive with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Codesuch excise tax. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding If aggregate amount of any payments or benefits under this Agreement, either alone or together with any other provisions payment, benefit, transfer of this Agreement property, or acceleration of vesting or payment, which the Executive receives or has a right to receive from any person or entity (the contrary"Total Payments"), would constitute a nondeductible "excess parachute payment" (as defined in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code), then the Company shall reduce the aggregate present value of the Payments payments or benefits under this Agreement shall be reduced (but not below zero) to the Reduced Amount largest amount as will result in no portion of the Total Payments being nondeductible under Section 280G of the Code with such reductions to be effected in the following order, with the payments or benefits in each category to be reduced to zero before any reduction occurs in respect to any other category of benefits: (as defined belowi) iffirst, the severance payments shall be reduced; (ii) second, the compensatory portion of any Continuation Benefits shall be reduced, with the reduction in each benefit to be pro-rated on a benefit by benefit basis, and (iii) finally, any equity acceleration shall be waived, with such waiver to be effected, in order, based on the award that, at the time of any Change in Control, had the greatest remaining period of service to be completed to fully vest in such award. The Company agrees to undertake such reasonable efforts as it may determine in its sole discretion to prevent any payment or benefit under this Agreement from constituting a nondeductible payment, provided the Company is not obligated to incur additional cost in order to make a payment nondeductible. The determination of any reduction under the preceding sentences shall be made by the Company in good faith, and such determination shall be binding on the Executive. The reduction provided by the first sentence of this Section 18 shall apply only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such after reduction was made, taking into account the for any applicable federal, state, local and foreign income, employment and other taxes, including the federal excise tax imposed by Section 4999 of the Code and federal income tax imposed by the Code. If a reduction in , the Payments is necessarytotal payment accruing to the Executive, such reduction shall occur in would be less than the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A amount of the Code Total Payments as reduced under said first sentence and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Codeafter reduction for federal income taxes. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a1) Notwithstanding any other provisions of anything in this Agreement to the contrary, in the event that it shall be determined that any payment payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by Employer (or any of its affiliated entities) or any entity which effectuates a Change of Control (or any of its affiliated entities) to or for the benefit of Executive, Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “Payment”the 'Payments') would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by (the 'Excise Tax') under Section 4999 of the Internal Revenue Code of 1986, as amended (the 'Code. If a '), then the amounts payable to Employee under this Agreement shall be reduced (reducing first the payments under Section 3(b), unless an alternative method of reduction is elected by Employee) to the maximum amount as will result in no portion of the Payments is necessarybeing subject to such Excise Tax (the 'Safe Harbor Cap'). For purposes of reducing the Payments of the Safe Harbor Cap, such reduction only amounts payable under this Agreement (and no other Payments) shall occur in the following order: (1) reduction of cash payments; be reduced, unless consented to by Employee. (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and Subsection 4(g) shall be made by the public accounting firm that is generally retained by Employer (the 'Accounting Firm'). In the event that the Accounting Firm is serving as accountant or auditor for any individual, entity or group effecting a Change of Control (or if the Accounting Firm fails to make the Determination), Employee may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). If payments are reduced to the Safe Harbor Cap, the Accounting Firm shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an a reasonable opinion to Executive Employee that he or she has substantial authority is not required to report any excise tax Excise Tax on his or her Federal federal income tax return with respect return. All fees, costs and expenses (including, but not limited to any Paymentsthe costs of retaining experts) of the Accounting Firm shall be borne by Employer. Any such The determination by the Accounting Firm shall be binding upon Employer and Employee (except as provided in Subsection (3) below). (3) If it is established pursuant to a final determination of a court or an Internal Revenue Service (the Company 'IRS') proceeding which has been finally and Executive. Subject to Sections 6.1(c) and 6.9conclusively resolved, within five business days thereafterthat Payments have been made to, the Company shall pay to or distribute to or provided for the benefit of, Employee by Employer, which are in excess of Executive the limitations provided in this Section 4 (hereinafter referred to as an 'Excess Payment'), such amounts Excess Payment shall be deemed for all purposes to be a loan to Employee made on the date Employee received the Excess Payment and Employee shall repay the Excess Payment to Employer on demand, together with interest on the Excess Payment at the applicable federal rate (as are then due to Executive under this Agreement. (cdefined in Section 1274(d) of the Code) from the date of Employee's receipt of such Excess Payment until the date of such repayment. As a result of the uncertainty in the application of Section 280G 4999 of the Code at the time of the initial determination by the Accounting Firm or the Company hereunderdetermination, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, Payments which will not have been made by the Company could Employer shall have been made (“an 'Underpayment”'), in each case, consistent with the calculations required to be made hereunderunder this Subsection 4(g). In the event that it is determined (i) by the Accounting Firm, based upon Employer (which shall include the assertion of a deficiency position taken by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been madeEmployer, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at its consolidated group, on its federal income tax return) or the applicable Federal rate provided for in Section 7872(f)(2)(AIRS, or (ii) of the Code; providedpursuant to a determination by a court, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any Employer shall pay an amount equal to such Underpayment shall be promptly paid by the Company to or for the benefit Employee within ten (10) days of Executive such determination together with interest on such amount at the applicable federal rate provided for in Section 7872(f)(2)(A) from the date such amount would have been paid to Employee until the date of the Codepayment.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that If any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable Executive would receive pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by pursuant to any other agreement with the Company for Federal income tax purposes because following a change in the ownership or effective control of the Company or change in the ownership of a substantial portion of the assets of the Company (which change, as further defined in Section 280G of the CodeCode and regulations promulgated thereunder (“Section 280G”), is referred to herein as a “Change in Control” from the Company shall reduce or otherwise would (i) constitute a “parachute payment” within the aggregate present value meaning of the Payments under this Agreement to the Reduced Amount Section 280G (as defined below) if“Payment”), and only if(ii) but for this section, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be 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 the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payments is necessaryPayment equals the Reduced Amount, such reduction shall occur in the following order: (1) reduction of cash payments, in the following order: (a) first, severance payments under this Agreement, (b) second, severance payments under any other agreement with the Company and (c) third, any other cash payments under any of the foregoing agreements; (2) cancellation of accelerated the acceleration of vesting of equity awards other than stock options, restricted stock, restricted stock units or any other awards that vest based on attainment of performance measures; (3) cancellation of accelerated the acceleration of vesting of stock options; , restricted stock and restricted stock units or any other awards that vest only based on Executive’s continued service to the Company, taking the last ones scheduled to vest (absent the acceleration) first, and (4) reduction other non-cash forms of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Codebenefits. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, if the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from UCH, Company and their affiliates (collectively, the “Payments”), would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided hereunder and under any other plan, program, agreement or arrangement maintained by UCH, Company or any of their affiliates (“Other Plan”) (provided, however, that, solely with respect to any parachute payment attributable to the Merger, such reference to “Other Plan” shall only include an Other Plan that does not provide Employee with the right to receive an additional payment with respect to any excise tax imposed under Section 4999 of the Code) shall be either (a) Notwithstanding any other provisions of this Agreement to reduced (but not below zero) so that the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined belowin Section 280G(b)(3) if, of the Code) and only if, reducing so that no portion of the Payments under this Agreement will provide Executive with a greater net after-tax amount than would shall be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (and solely for purposes of parachute payments attributable to the Merger, taking into account any applicable excise tax under Section 4999 of the Code, any other applicable taxes and any gross-up payments to Employee under any Other Plan). If a The reduction of Payments, if any, shall be made by reducing the Payments in the reverse order in which the Payments would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time). The determination as to whether any such reduction in the Payments is necessarynecessary shall be made by the UCH Board Committee in good faith. If a reduced Payment is made or provided and, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards through error or otherwise, that Payment, when aggregated with other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the from Company (the or its affiliates) used in determining if a “Accounting Firm”parachute payment” exists, exceeds one dollar ($1.00) which may be the firm regularly auditing the financial statements of the less than three times Employee’s base amount, then Employee shall immediately repay such excess to Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions provision of this Agreement to the contrary, in the event that it shall if any amount or benefit to be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of provided under this Agreement or otherwise (a “Payment”) would be nondeductible by an “Excess Parachute Payment” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeCode but for the application of this sentence, then the Company shall reduce the aggregate present value of the Payments under this Agreement payments and benefits to the Reduced Amount (as defined below) if, and only if, reducing the Payments be paid or provided under this Agreement will provide Executive with a greater net be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax amount than would be the case if no such reduction was made, basis (taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). If a reduction The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 6(a) will not of itself limit or otherwise affect any other rights of the Payments Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is necessaryrequired to be reduced pursuant to this Section 6(a), the Company will effect such reduction shall occur to the extent necessary in the following order: (1) reduction of first, performance-based equity grants; second, time-based equity grants; third other noncash benefits; and fourth, cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any each group, such category of benefits or payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed reduced in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Codereverse order in which they would otherwise have been vested or paid. (b) All computations and determinations relevant to be made under this Section 6.9 6(a) shall be made at the Company’s expense by a an independent accounting firm of certified public accountants of national standing selected and reimbursed by the Company (the “Accounting Firm”) ), subject to the Executive’s consent (not to be unreasonably withheld), which firm may be the firm regularly auditing Company’s accountants. If the financial statements of Accounting Firm determines that any amounts are Excess Parachute Payments, the CompanyAccounting Firm shall provide its determination (the “Determination”), together with detailed supporting calculations both to the Company and the Executive by no later than ten (10) days following its Determination, if applicable, or such earlier time as is requested by the Company or the Executive (if the Executive reasonably believes that any amounts are Excess Parachute Payments). If the Accounting Firm determines that no amounts are Excess Parachute Payments, it shall furnish the Executive and the Company with a written statement that such Accounting Firm has so concluded that no excise tax is payable (including the reasons therefor) and that the Executive has substantial authority not to report any excise tax on his federal income tax. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require request in order to make a determination under this Sectionhereunder. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the The Accounting Firm shall value, services be required to be provided by Executive provide its Determination within sixty (including refraining from performing services pursuant to a covenant not to compete60) before, on or days after the date of the transaction which cause Executive’s termination, and the application Company shall be responsible for any income tax, penalty or interest liability incurred as a result of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, delay by the Accounting Firm shall apply 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 lawsFirm. The Accounting Firm shall make all determinations required to be made under this Section its Determination on the basis of substantial authority and shall provide detailed supporting calculations opinions to that effect to both the Company and the Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit request of Executive such amounts as are then due to Executive under this Agreementeither of them. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall the any payments or benefits received or to be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable received by Executive pursuant to the terms of this Agreement or otherwise (a a) constitute “Payment”) would be nondeductible by parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, as determined by the accounting firm that audited the Company shall reduce prior to the aggregate present value Change of Control or another nationally known accounting or employee benefits consulting firm selected by the Company prior to such Change of Control (the “Accounting Firm”) and (b) but for this Section 4.4, would, in the judgment of the Payments under this Agreement Accounting Firm, be subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because reason of Section 280G of the Code. (b) All determinations to be made , then Executive’s benefits under this Section 6.9 Agreement shall be made at payable either: (i) in full, or (ii) as to such lesser amount which would result in no portion of such payments or benefits being subject to the Company’s expense by a firm excise tax under Section 4999 of certified public accountants of national standing selected the Code, as determined by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements , whichever of the Company. The Company foregoing amounts, taking into account the applicable federal, state and Executive shall furnish to local income and employment taxes and the Accounting Firm such information and documents as excise tax imposed by Section 4999, results in the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested receipt by Executive, on an after-tax basis, of the Company shall cooperate with Executive in good faith in valuinggreatest amount of benefits under this Agreement, and as determined by the Accounting Firm shall valueFirm, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on notwithstanding that all or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect some portion of such services benefits may be considered to be “reasonable compensation” within the meaning of the regulations taxable under Section 280G 4999 of the Code. In making the event that a lesser amount is paid under clause (b)(ii) above, then the elements of Executive’s payments hereunder shall be reduced in such order (A) as the Company determines, in its determinations hereundersole discretion, has the least economic detriment to Executive and (B) which does not result in the imposition of any tax penalties under Section 409A on the Executive. To the extent the economic impact of reducing payments from one or more elements is equivalent and subject to clause (B) of the preceding sentence, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to reduction may be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made pro rata by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codeits sole discretion.

Parachute Payments. (a) Notwithstanding any other provisions of anything contained in this Agreement to the contrary, in the event that it shall be determined that any payment or distribution to or the benefits provided for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of in this Agreement to you together with all other payments and the value of any benefit received or otherwise to be received by you: (a a) constitute “Payment”) would be nondeductible by parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall reduce the aggregate present value of the Payments under and (b) but for this Agreement to the Reduced Amount (as defined below) ifSection 15, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code. If a reduction in , then the Payments is necessary, such reduction benefits pursuant to the terms of this Agreement shall occur in the following order: be payable to you either: (1) reduction of cash payments; in full, or (2) cancellation as to such lesser amount which would result in no portion of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other such benefits paid being subject to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this excise tax under Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G 4999 of the Code. (b) All determinations , whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be subject to be made the excise tax imposed under Section 4999 of the Code. Unless the Company and you otherwise agree in writing, any determination required under this Section 6.9 15 shall be made at in writing by the Company’s expense by a firm of certified independent public accountants of national standing selected by serving immediately before the Company Change in Control, as defined in Section 13(d)(2) above, (the “Accounting FirmAccountants”) which ), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section 15, the Accountants may be make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the firm regularly auditing application of Sections 280G and 4999 of the financial statements Code. The Company shall cause the Accountants to provide detailed supporting calculations of its determinations to you and the Company. The You and the Company and Executive shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this SectionSection 15. To the extent requested by Executive, the The Company shall cooperate with Executive bear all costs the Accountants may reasonably incur in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding the applicability of Section 280G and Section 4999, along connection with any other applicable portions of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under calculations contemplated by this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement15. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any Any other provisions of this Agreement or of any other agreement between Employee and Employer to the contrarycontrary notwithstanding, in the event that it shall be determined that if any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Employee would receive from Employer or otherwise in connection with a change of control of Employer (a “"Payment”") would be nondeductible by (i) constitute a "parachute payment" within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement Code and (ii) be subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in Code (the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1"Excise Tax"), then the Employer shall pay the Employee an additional payment (2a "Gross-Up Payment"). The Gross-Up Payment shall equal an amount such that after payment by the Employee of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (3and any interest and penalties imposed with respect thereto) or (4) and Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes, interest and penalties imposed pursuant to Section 409A of the Code, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 6.9(a)9(j), if it is determined that the Employee would be entitled to a reduction shall occur first with respect Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of an amount equal to amounts that are not “deferred compensation” 2.99 times the Employee's "base amount" within the meaning of Section 409A 280G(b)(3) of the Code and (the "Safe Harbor Amount"), then with respect to amounts that are. The “Reduced Amount” no Gross-Up Payment shall be an amount expressed made to the Employee and the amounts payable in present value cash under Section 7 of this Agreement shall be reduced so that maximizes the aggregate Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. For purposes of reducing the Payments to the Safe Harbor Amount, each payment to be made in cash under Section 7 of this Agreement shall be reduced on a pro rata basis, and no other Payments shall be reduced. If the reduction of the amounts payable in cash under Section 7 of this Agreement would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under the Agreement shall be reduced pursuant to this Section 9(j) and the Employee shall be paid the Gross-Up Payment. For purposes of this Section 9(j), "Parachute Value" means the present value of Payments under this Agreement without causing any a Payment to be nondeductible by the Company because as of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application a change of control for purposes of Section 280G of the Code such that payments in respect of the portion of such services may be considered to be “reasonable compensation” within the meaning of the regulations Payment that constitutes a "parachute payment" under Section 280G of the Code. In making its determinations hereunder280G(b)(2), as determined by the Accounting Firm shall apply 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(as defined below). The Accounting Firm shall make all All determinations required to be made under this Section 9(j), including whether and when a Gross-Up Payment is required and the amount of any such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by a nationally recognized accounting firm selected in the discretion of the Employer immediately prior to the change of control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company Employer and Executive the Employee within 30 15 business days after of the Termination Date receipt of notice from the Employee that there has been a Payment, or such earlier time as is requested by the CompanyEmployer. Except as provided below, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company Employer and Executivethe Employee. Subject to Sections 6.1(c) and 6.9If, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been a claim made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which or any other applicable taxing authority, it is determined that the amount of the Excise Tax payable by the Employee is greater than the amount initially determined by the Accounting Firm, then the Employer (or its successor) shall pay to the Employee an additional Gross-Up Payment (determined as set forth above) with respect to such additional Excise Tax. All fees and expenses of the Accounting Firm believes has a high probability and of success determines responding to any claim made by the Internal Revenue Service or any other applicable taxing authority shall be borne solely by the Employer; and, in that an Overpayment has been maderegard, promptly on notice (i) the Employer shall pay such fees and demand Executive expenses not later than the end of the calendar year following the calendar year in which the related work is performed or the expenses are incurred, (ii) the amount of fees and expenses that the Employer is obligated to pay in any given calendar year shall repay not affect any amounts that the Employer is obligated to pay in any other calendar year, and (iii) the Employee's right to have the Employer pay such fees and expenses may not be liquidated or exchanged for any other benefit. Any Gross-Up Payment, as determined pursuant to this Section 9(j), shall be paid by the Employer to the Company Employee within fifteen business days of the receipt of the Accounting Firm's determination or the final resolution of any such Overpayment paid or distributed claim made by the Company Internal Revenue Service or any other applicable taxing authority; provided that, the Gross-Up Payment shall in all events be paid no later than the end of the Employee's taxable year next following the Employee's taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service or any other applicable taxing authority or, in the case of amounts relating to a claim that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which the claim is finally settled or otherwise resolved. The Employer may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) Employee, all or any portion of any Gross-Up Payment, and the Code; provided, however, that no Employee hereby consents to such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codewithholding.

Parachute Payments. (a) i. Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “PaymentPayments”) ), would be nondeductible by constitute an “excess parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeCode (after taking into consideration any mitigating factors such as the value of any non-competition restrictions or similar factors), the Company shall reduce (but not below zero) the aggregate present value of the Payments under this the Agreement to the Reduced Amount (as defined below) if), and only if, if reducing the Payments under this Agreement will provide the Executive with a greater net after-tax amount than would be the case if no such reduction was mademade (for clarity, taking into account if not reducing the applicable Payments will provide the Executive with a greater net after-tax amount, then no reduction shall occur). The Payments shall be reduced as described in the preceding sentence only if (A) the net amount of the Payments, as so reduced (and after subtracting the net amount of federal, statestate and local income and payroll taxes on the reduced Payments), local and foreign income, employment and other taxes, including is greater than or equal to (B) the excise tax imposed by Section 4999 net amount of the Code. If a Payments without such reduction in (but after subtracting the net amount of federal, state and local income and payroll taxes on the Payments is necessary, such reduction shall occur in and the following order: amount of Excise Tax (1as defined below) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first which the Executive would be subject with respect to the unreduced Payments). Only amounts that are not “deferred compensation” within the meaning of payable under this Agreement shall be reduced pursuant to this Section 5(l), and any reduction shall be made in accordance with Section 409A of the Code and then with respect to amounts that areCode. ii. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment under this Agreement to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish subject to the Accounting Firm such information and documents as the Accounting Firm may reasonably require Excise Tax, determined in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate accordance with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to competeSection 280G(d)(4) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, The term “Excise Tax” means the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive imposed under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting FirmCode, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with any interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codeor penalties imposed with respect to such excise tax.

Parachute Payments. (a) Notwithstanding any other provisions of anything contained in this Agreement to the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of extent that payments and benefits provided under this Agreement or otherwise (a “Payment”including the acceleration of vesting of equity awards) to Executive (such payments or benefits are collectively referred to as the "Payments") would be nondeductible subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Code, the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to Executive shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 9(d), "net after-tax benefit" shall mean (i) the Payments which Executive receives or is then entitled to receive from the Company for Federal income tax purposes because that would constitute "parachute payments" within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the "Accounting Firm") selected by Executive and reasonably acceptable to the Company shall reduce (which may be, but will not be required to be, the aggregate present value Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the affected Executive and the Company within fifteen (15) calendar days after Executive's date of Separation from Service. If the Accounting Firm determines that such reduction is required by this Section 9(d) and no Payment constitutes non-qualified deferred compensation that is subject to Section 409A of the Code, Executive, in Executive's sole and absolute discretion, may determine which Payments under this Agreement shall be reduced to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would extent necessary so that no portion thereof shall be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to him. If the Accounting Firm determines that a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1required by this Section 9(d), (2), (3) or (4) and any Payment constitutes a "deferral of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” " within the meaning of Section 409A of the Code and Code, then with respect to amounts that are. The “Reduced Amount” the Payments shall be an amount expressed reduced in present value the following order; (a) reduction in the cash severance payments described herein (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to is, later payments shall be nondeductible by the Company because of Section 280G of the Code. reduced before earlier payments); (b) All determinations reduction in any other cash payments payable to Executive (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments); (c) cancellation of acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the underlying equity; and (d) cancellation of acceleration of vesting of equity awards not covered under (c) above; provided, however that in the event that acceleration of vesting of equity awards is to be made under this Section 6.9 cancelled, such acceleration of vesting shall be made at cancelled in the Company’s expense by a firm reverse order of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect grant of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunderequity awards, the Accounting Firm shall apply reasonablethat is, 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm later equity awards shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreementcanceled before earlier equity awards. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of Anything in this Agreement to the contrarycontrary notwithstanding, in the event that it shall be determined that the amount of any compensation, payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (otherwise, calculated in a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of manner consistent with Section 280G of the CodeCode and the applicable regulations thereunder (the “Payments”), would be subject to the Excise Tax, the Company following provisions shall reduce apply: (i) If the aggregate present value Payments, reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes payable by Executive on the amount of the Payments which are in excess of the Threshold Amount, are greater than or equal to the Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement to Agreement. (ii) If the Reduced Threshold Amount is less than (as defined belowx) ifthe Payments, and only if, reducing but greater than (y) the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be reduced by the case if no such reduction was made, taking into account sum of (1) the applicable federalExcise Tax and (2) the total of the Federal, state, and local income and foreign incomeemployment taxes on the amount of the Payments which are in excess of the Threshold Amount, employment then the Payments shall be reduced (but not below zero) to the minimum extent necessary so that the sum of all Payments shall not exceed the Threshold Amount. In such event, the Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A of the Code; (B) cash payments subject to Section 409A of the Code (to the extent such reduction does not result in tax penalties to Executive); (C) equity-based payments and other taxesacceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., including in installments, etc.), then the payments shall be reduced in reverse chronological order. No reductions shall be made under this Subparagraph 9(a)(ii) unless agreed to by Executive. (b) For the purposes of this Paragraph 8, “Threshold Amount” shall mean three times Executive’s “base amount” within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00); and “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) interest or (4) of this Section 6.9(a)), a reduction shall occur first penalties incurred by Executive with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Codesuch excise tax. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall any payments or benefits received or to be determined that any payment or distribution to or for received by the benefit of Executive, whether paid or payable or distributed or distributable Executive pursuant to the terms of this Agreement or otherwise (a i) constitute “Payment”) would be nondeductible by parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, as determined by the accounting firm that audited the Company shall reduce prior to the aggregate present value relevant “change in ownership or control” within the meaning of Section 280G of the Payments Code or another nationally known accounting or employee benefits consulting firm selected by the Company prior to such change in ownership or control (the “Accounting Firm”) and (ii) but for this Section 8(j), would, in the judgment of the Accounting Firm, be subject to the excise tax imposed by Section 4999 of the Code by reason of Section 280G of the Code, then the Executive’s benefits under this Agreement shall be payable either: (A) in full, or (B) as to such lesser amount which would result in no portion of such payments or benefits being subject to the Reduced Amount (excise tax under Section 4999 of the Code, as defined below) ifdetermined by the Accounting Firm, and only if, reducing whichever of the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was madeforegoing amounts, taking into account the applicable federal, state, state and local income and foreign income, employment taxes and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction , results in the Payments is necessaryreceipt by Executive, such reduction shall occur in on an after-tax basis, of the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category greatest amount of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible Agreement, as determined by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which , notwithstanding that all or some portion of such payments and benefits may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations taxable under Section 280G 4999 of the Code. In the event that a lesser amount is paid under clause (ii)(B) above, then the elements of Executive’s payments hereunder shall be reduced in such order (1) as the Company determines, in its sole discretion, has the least economic detriment to the Executive and (2) which does not result in the imposition of any tax penalties under Section 409A on the Executive. To the extent the economic impact of reducing payments from one or more elements is equivalent, and subject to clause (2) of the preceding sentence, the reduction may be made pro rata by the Company in its sole discretion. In connection with making its determinations hereunder, the Accounting Firm shall apply reasonable, good faith interpretations regarding take into account the applicability value of Section any reasonable compensation for services to be rendered by the Executive before or after the 280G CIC, including any noncompetition provisions that may apply to the Executive (whether set forth in this Agreement or otherwise), and the Company shall cooperate in the valuation of any such services, including any noncompetition provisions. Notwithstanding the foregoing, this Section 4999, along with 8(j) shall not apply in respect of any other applicable portions event described in Section 280G(b)(2)(A)(i) of the Code or other tax laws. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section ‘‘280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“OverpaymentCIC”) or that additional Paymentsoccurs prior to May 16, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder2020. In the event of any 280G CIC that occurs prior to May 16, 2020, the Accounting Firm, based upon the assertion provisions of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive Exhibit B hereto shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codeapply.

Parachute Payments. (a) Notwithstanding any other provisions of Anything in this Agreement to the contrarycontrary notwithstanding, in the event that it shall be determined that if any payment or distribution to or for benefit the benefit of Executive, whether paid or payable or distributed or distributable Employee would receive from the Company pursuant to the terms of this Agreement or otherwise (a “Payment”) would be nondeductible by (i) constitute a “parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under and (ii) but for this Agreement sentence, be subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in Code (the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1“Excise Tax”), (2), (3) or (4) of this Section 6.9(a)), a reduction then such Payment shall occur first with respect be equal to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that areReduced Amount. The “Reduced Amount” shall be an amount expressed in present value that maximizes either (1) the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G largest portion of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements Payment that would result in no portion of the Company. The Company and Executive shall furnish Payment being subject to the Accounting Firm such information Excise Tax or (2) the Payment or a portion thereof after payment of the applicable Excise Tax, whichever amount after taking into account all applicable federal, state and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executivelocal employment taxes, the Company shall cooperate with Executive in good faith in valuingincome taxes, and the Accounting Firm Excise Tax (all computed at the highest applicable marginal rate), results in the Employee’s receipt, on an after-tax basis, of the greatest amount of the Payment. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall valueoccur in the order of payments the Employee elects in writing, services provided, however, that such election shall be subject to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, Company approval if made on or after the date of on which the transaction which cause event that triggers the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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 lawsPayment occurs. The Accounting Firm shall Company’s principal outside accounting firm will make all determinations required to be made under this Section hereunder and shall provide its calculations, together with detailed supporting calculations documentation, to the Company and Executive the Employee within 30 fifteen (15) calendar days after the Termination Date date on which the Employee’s right to a Payment is triggered (if requested at that time by the Company or Employee) or such earlier other time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as Employee. If the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success accounting firm determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.Excise

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution benefit received or to or for be received by the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of Participant under this Agreement or otherwise any other award under the Plan in connection with a Change in Control, as defined in the Plan, (a collectively, the “PaymentChange in Control Payments”) would be nondeductible by (i) constitute (together with other payments or benefits contingent on a Change in Control) a “parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeCode or any successor provision and (ii) but for this section, the Company shall reduce the aggregate present value of the Payments under this Agreement be subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction Code or any successor provision (the “Excise Tax”), then the Participant shall receive: (A) the full amount of such Change in Control Payments, or (B) such lesser amount of such Change in Control Payments, which would result in no portion of such Change in Control Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the Payments is necessaryreceipt by the Participant, such reduction shall occur in on an after-tax basis, of the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category greatest amount of payments and or benefits contingent on the Change in Control (that is, clauses (1including without limitation the Change in Control Payments), (2), (3) notwithstanding that all or (4) some portion of this such Change in Control Payments may be taxable under Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G 4999 of the Code. (b) All determinations to be made . Any determination required under this Section 6.9 section shall be made at the Company’s expense in writing by a an independent public accounting firm of certified public accountants of national standing or other independent third party selected by the Company (the “Accounting FirmAccountants”) which ), whose costs shall be paid by the Company and whose determination shall be conclusive and binding upon the Participant and the Company for all purposes. For purposes of making the calculations required by this section, the Accountants may be make reasonable assumptions concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the firm regularly auditing the financial statements application of Sections 280G and 4999 of the CompanyCode. The Company and Executive Participant shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereundersection. In the event that the Accounting FirmAccountants determine the Change in Control Payments are to be reduced under (B) above, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive such reduction shall repay first be made as to the Company any such Overpayment paid Common Stock payment or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for under any Plan awards in Section 7872(f)(2)(A) reverse chronological order of the Code; providedgrant date, however, that no then any such amount shall be payable by Executive to the Company if and to the extent such cash payment would not either reduce the amount on which Executive is subject to tax or benefit under Section 1 and Section 4999 any Plan awards in reverse chronological order of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codegrant date.

Parachute Payments. (a) Notwithstanding any other provisions of provision in this Agreement to the contraryAgreement, in the event that it shall be determined that any payment payments or distribution benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or for any person affiliated with the benefit of ExecutiveCompany or such person (in the aggregate, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “PaymentPayments”) would be nondeductible by (i) constitute a “parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under and (ii) but for this Agreement sentence, be subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the CodeCode or any similar or successor provision (the “Excise Tax”), then the amount of the Payments shall be equal to either (x) the largest portion of the Payments that would result in no portion of the Payments being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount of the Payments, whichever of the foregoing amounts, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest marginal rate applicable to individuals in the year in which the Payments are to be made), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. If a reduction in the Payments is necessaryrequired so that the amount of the Payments equals the Reduced Amount, such reduction the Payments shall occur be reduced in the following order: (1) reduction of cash paymentsPayments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock optionsoptions that are exempt from Section 409A of the Code; and (4) reduction of any other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect otherwise payable to amounts Executive that are not “deferred compensation” within the meaning of exempt from Section 409A of the Code Code; and then (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G 409A of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense , as determined by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by If acceleration of vesting of Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services ’s stock options or other equity awards is to be provided by Executive (including refraining from performing services reduced pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.clauses

Parachute Payments. (ai) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall will be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “PaymentPayments”) ), would be nondeductible by constitute an “excess parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall will reduce (but not below zero) the aggregate present value of the Payments under this the Agreement to the Reduced Amount (as defined below) if), and only if, if reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made. To the extent such Payments are required to be so reduced, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by Section 4999 of the Code. If a reduction in the Payments is necessary, such reduction shall occur due to Executive will be reduced in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; , unless otherwise agreed and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first agreement is in compliance with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code Code: (i) Payments that are payable in cash, with amounts that are payable last reduced first; (ii) Payments due in respect of any equity or equity derivatives included at their full value under Section 280G (rather than their accelerated value); (iii) Payments due in respect of any equity or equity derivatives valued at accelerated value under Section 280G, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); and then (iv) all other non-cash benefits. The Payments will be reduced as described in the preceding sentence only if (A) the net amount of the Payments, as so reduced (and after subtracting the net amount of federal, state and local income and payroll taxes on the reduced Payments), is greater than or equal to (B) the net amount of the Payments without such reduction (but after subtracting the net amount of federal, state and local income and payroll taxes on the Payments and the amount of Excise Tax (as defined below) to which Executive would be subject with respect to amounts that are. the unreduced Payments). (ii) The “Reduced Amount” shall will be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement or otherwise without causing any Payment under this Agreement to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish subject to the Accounting Firm such information and documents as the Accounting Firm may reasonably require Excise Tax, determined in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate accordance with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to competeSection 280G(d)(4) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, The term “Excise Tax” means the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive imposed under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting FirmCode, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with any interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codeor penalties imposed with respect to such excise tax.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) the "Payments"), would be nondeductible by constitute an "excess parachute payment" within the Company for Federal income tax purposes because meaning of Section 280G of the Code, the Company shall reduce (but not below zero) the aggregate present value of the Payments under this the Agreement to the Reduced Amount (as defined below) if), and only if, if reducing the Payments under this Agreement will provide the Executive with a greater net after-tax amount than would be the case if no such reduction was made. The Payments shall be reduced as described in the preceding sentence only if (i) the net amount of the Payments, taking into account as so reduced (and after subtracting the applicable net amount of federal, statestate and local income and payroll taxes on the reduced Payments), local and foreign income, employment and other taxes, including is greater than or equal to (ii) the excise tax imposed by Section 4999 net amount of the Code. If a Payments without such reduction in (but after subtracting the net amount of federal, state and local income and payroll taxes on the Payments is necessary, such reduction shall occur in and the following order: amount of Excise Tax (1as defined below) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first which the Executive would be subject with respect to the unreduced Payments). Only amounts that are not “deferred compensation” within the meaning of payable under this Agreement shall be reduced pursuant to this Section 9, and any reduction shall be made in accordance with Section 409A of the Code and then with respect to amounts that are. Code. (b) The “"Reduced Amount” " shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment under this Agreement to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish subject to the Accounting Firm such information and documents as the Accounting Firm may reasonably require Excise Tax, determined in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate accordance with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to competeSection 280G(d)(4) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, The term "Excise Tax" means the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive imposed under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting FirmCode, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with any interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codeor penalties imposed with respect to such excise tax.

Parachute Payments. (a) Notwithstanding To the extent consistent with applicable law, the payment of any other provisions amounts or the provision of this Agreement to the contrary, in the event that it shall be determined that any payment or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of benefits under this Agreement or otherwise (a “Payment”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Codeany other agreement including, without limitation, the Company shall reduce the aggregate present value of the Payments under this Agreement Total Payments, will be reduced or adjusted to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including avoid triggering the excise tax (the “Excise Tax”) imposed by Section 4999 of the CodeCode (the “Required Reduction”), if such adjustment would result in the provision of a greater total benefit, on a net after-tax basis (after taking into account any applicable federal, state and local income and employment taxes and the Excise Tax), to Executive. If In the case of a reduction in the Total Payments, the Total Payments is necessary, such reduction shall occur will be reduced in the following order: (1i) reduction by reducing any cash payments to be made to Executive (excluding any cash payment with respect to the acceleration of cash paymentsequity-based compensation); (2ii) cancellation by canceling the acceleration of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock optionsany outstanding equity-based compensation awards; and (4iii) reduction of by reducing any other non-cash benefits paid provided to Executive. Within any such category In the case of payments the reductions to be made pursuant to each of the above-mentioned clauses, the payment and/or benefit amounts to be reduced, and benefits the acceleration of vesting to be cancelled, shall be reduced or cancelled in the inverse order of their originally scheduled dates of payment or vesting, as applicable, and shall be so reduced: (x) only to the extent that isthe payment and/or benefit otherwise to be paid, clauses (1)or the vesting of the award that otherwise would be accelerated, (2), (3) or (4) of this Section 6.9(a)), would be treated as a reduction shall occur first with respect to amounts that are not “deferred compensationparachute payment” within the meaning of Code Section 409A of 280G(b)(2)(A); and (y) only to the Code and then with respect extent necessary to amounts that areachieve the Required Reduction. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 16(f) (as well as with respect to any payments provided to any other “disqualified individual” of the Company within the meaning of Section 280G(c) of the Code) shall be made at the Company’s expense by a nationally recognized accounting firm of certified public accountants of national standing selected by as mutually agreed between the Company and Executive (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to Executive and the Company Company. All fees and Executive within 30 days after expenses of the Termination Date or such earlier time as is requested Accounting Firm shall be borne by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination All determinations by the Accounting Firm shall be binding upon on Executive and the Company and Executiveabsent manifest error. Subject Notwithstanding the foregoing, if prior to Sections 6.1(c) and 6.9, within five business days thereafter, a change in ownership or effective control of the Company shall pay to or distribute to or for the benefit of Executive such amounts (as are then due to Executive under this Agreement. (c) As a result of the uncertainty described in the application of Section 280G of the Code at and the time regulations and guidance promulgated thereunder, no stock of the initial determination by Company is readily tradable on an established securities market and the Accounting Firm or determines that the Excise Tax would be imposed upon the Total Payments (and any other payments) then, subject to Executive’s execution of a written agreement providing that Executive will waive any portion of the Total Payments (and any other payments) that would otherwise cause such payments to be subject to the Excise Tax, the Company hereunder, it is possible that Payments, as agrees to use commercially reasonable efforts to submit to the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”)Company’s shareholders for approval, in each case, consistent with the calculations required to be made hereunder. In the event a manner that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in satisfies Section 7872(f)(2)(A280G(b)(5)(B) of the Code; provided, however, that no such amount shall be payable by Executive Executive’s conditional right to receive the portion of the Total Payments (and other payments) otherwise subject to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codewaiver agreement.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that any payment or distribution benefit received or to or for the benefit of Executive, whether paid or payable or distributed or distributable be received by Employee pursuant to the terms of this Agreement or otherwise would (a a) constitute “Payment”) would be nondeductible by parachute payments” within the Company for Federal income tax purposes because meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) ifor any comparable successor provisions, and only if, reducing the Payments under (b) but for this Agreement will provide Executive with a greater net after-tax amount than Section 3.8 would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including subject Employee to the excise tax imposed by Section 4999 of the Code. If a reduction , or any comparable successor provisions (the “Excise Tax”), then Employee’s benefits hereunder shall be either (a) provided to Employee in full, or (b) provided to Employee as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the Payments is necessaryreceipt by Employee, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such reduction shall occur benefits may be taxable under the Excise Tax, as determined by the Company’s independent public accountants (the “Accountants”). Unless the Company and the Employee otherwise agree in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within writing, any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of determination required under this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” 3(8) shall be an amount expressed made in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible writing by the Accountants whose determination shall be conclusive and binding upon the Employee and the Company because for all purposes. For purposes of Section making the calculations required by this paragraph, 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. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive the Employee shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement3(8). (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (a) Notwithstanding any other provisions of this Agreement to the contrary, in In the event that it shall be determined that (i) any payment or distribution benefit received or to be received by Employee in connection with a Change of Control or for the benefit termination of Executive, Employee’s employment (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person) (a collectively “PaymentParachute Payments”) would not be nondeductible by the Company for Federal income tax purposes because deductible (in whole or part) as a result of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) by the Company, an affiliate or other person making such payment or providing such benefit; and (ii) it is determined in good faith by Employer that the Company shall reduce the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be of the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the Parachute Payments retained by Employee after deduction for any excise tax imposed by Section 4999 of the Code. If a reduction in Code and any federal, state, and local income and employment taxes would not exceed the Payments is necessary, such reduction shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A net after-tax amount of the Code and then with respect Parachute Payments retained by Employee after limiting the Parachute Payments to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes is 2.99 times the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible Employee’s “base amount” (as such term is defined by the Company because of Section 280G of the Code.), the Parachute Payments shall be reduced until no portion of the Parachute Payments is not deductible. For purposes of this provision, (b1) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements no portion of the Company. The Company and Executive Parachute Payments the receipt or enjoyment of which Employee shall furnish have effectively waived in writing prior to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G payment of the Code Parachute Payments shall be taken into account; (2) no portion of the Parachute Payments shall be taken into account which in the opinion of tax counsel selected by Employer or its independent auditors serving as such that payments in respect immediately prior to the Change of such services may be considered to be Control does not constitute a “reasonable compensationparachute payment” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”section 280G(b), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Parachute Payments. (ai) Notwithstanding any other provisions of this Agreement to the contrary, in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “PaymentPayments”) ), would be nondeductible by constitute an “excess parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G of the CodeCode (after taking into consideration any mitigating factors such as the value of any non-competition restrictions or similar factors), the Company shall reduce (but not below zero) the aggregate present value of the Payments under this the Agreement to the Reduced Amount (as defined below) if), and only if, if reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made. The Payments shall be reduced as described in the preceding sentence only if (A) the net amount of the Payments, taking into account as so reduced (and after subtracting the applicable net amount of federal, statestate and local income and payroll taxes on the reduced Payments), local and foreign income, employment and other taxes, including is greater than or equal to (B) the excise tax imposed by Section 4999 net amount of the Code. If a Payments without such reduction in (but after subtracting the net amount of federal, state and local income and payroll taxes on the Payments is necessary, such reduction shall occur in and the following order: amount of Excise Tax (1as defined below) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first which Executive would be subject with respect to the unreduced Payments). Only amounts that are not “deferred compensation” within the meaning of payable under this Agreement shall be reduced pursuant to this Section 2(f), and any reduction shall be made in accordance with Section 409A of the Code and then with respect to amounts that are. Code. (ii) The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment under this Agreement to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish subject to the Accounting Firm such information and documents as the Accounting Firm may reasonably require Excise Tax, determined in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate accordance with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to competeSection 280G(d)(4) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, The term “Excise Tax” means the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an opinion to Executive that he or she has substantial authority not to report any excise tax on his or her Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Subject to Sections 6.1(c) and 6.9, within five business days thereafter, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive imposed under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm or the Company hereunder, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting FirmCode, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with any interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Codeor penalties imposed with respect to such excise tax.

Parachute Payments. (a1) Notwithstanding any other provisions of anything in this Agreement to the contrary, in the event that it shall be determined that any payment payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by Employer (or any of its affiliated entities) or any entity which effectuates a Change of Control (or any of its affiliated entities) to or for the benefit of Executive, Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a the “PaymentPayments”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, the Company shall reduce the aggregate present value of the Payments under this Agreement subject to the Reduced Amount (as defined below) if, and only if, reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no such reduction was made, taking into account the applicable federal, state, local and foreign income, employment and other taxes, including the excise tax imposed by (the “Excise Tax”) under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code. If a ”), then the amounts payable to Employee under this Agreement shall be reduced (reducing first the payments under Section 3(b), unless an alternative method of reduction is elected by Employee) to the maximum amount as will result in no portion of the Payments is necessarybeing subject to such Excise Tax (the “Safe Harbor Cap”). For purposes of reducing the Payments of the Safe Harbor Cap, such reduction only amounts payable under this Agreement (and no other Payments) shall occur in the following order: (1) reduction of cash payments; be reduced, unless consented to by Employee. (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, clauses (1), (2), (3) or (4) of this Section 6.9(a)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) All determinations to be made under this Section 6.9 shall be made at the Company’s expense by a firm of certified public accountants of national standing selected by the Company (the “Accounting Firm”) which may be the firm regularly auditing the financial statements of the Company. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section. To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall value, services to be provided by Executive (including refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which cause the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. In making its determinations hereunder, the Accounting Firm shall apply 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. The Accounting Firm shall make all determinations required to be made under this Section and Subsection 4(g) shall be made by the public accounting firm that is generally retained by Employer (the “Accounting Firm”). In the event that the Accounting Firm is serving as accountant or auditor for any individual, entity or group effecting a Change of Control (or if the Accounting Firm fails to make the Determination), Employee may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). If payments are reduced to the Safe Harbor Cap, the Accounting Firm shall provide detailed supporting calculations to the Company and Executive within 30 days after the Termination Date or such earlier time as is requested by the Company, and provide an a reasonable opinion to Executive Employee that he or she has substantial authority is not required to report any excise tax Excise Tax on his or her Federal federal income tax return with respect return. All fees, costs and expenses (including, but not limited to any Payments. Any such the costs of retaining experts) of the Accounting Firm shall be borne by Employer, and the determination by the Accounting Firm shall be binding upon Employer and Employee (except as provided in Subsection (3) below). (3) If it is established pursuant to a final determination of a court or an Internal Revenue Service (the Company “IRS”) proceeding which has been finally and Executive. Subject to Sections 6.1(c) and 6.9conclusively resolved, within five business days thereafterthat Payments have been made to, the Company shall pay to or distribute to or provided for the benefit of, Employee by Employer, which are in excess of Executive the limitations provided in this Section 4 (hereinafter referred to as an “Excess Payment”), such amounts Excess Payment shall be deemed for all purposes to be a loan to Employee made on the date Employee received the Excess Payment and Employee shall repay the Excess Payment to Employer on demand, together with interest on the Excess Payment at the applicable federal rate (as are then due to Executive under this Agreement. (cdefined in Section 1274(d) of the Code) from the date of Employee’s receipt of such Excess Payment until the date of such repayment. As a result of the uncertainty in the application of Section 280G 4999 of the Code at the time of the initial determination by the Accounting Firm or the Company hereunderdetermination, it is possible that Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Payments, as the case may be, Payments which will not have been made by the Company could Employer shall have been made (an “Underpayment”), in each case, consistent with the calculations required to be made hereunderunder this Subsection 4(g). In the event that it is determined (i) by the Accounting Firm, based upon Employer (which shall include the assertion of a deficiency position taken by the Internal Revenue Service against Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been madeEmployer, promptly on notice and demand Executive shall repay to the Company any such Overpayment paid or distributed by the Company to or for the benefit of Executive together with interest at its consolidated group, on its federal income tax return) or the applicable Federal rate provided for in Section 7872(f)(2)(AIRS, or (ii) of the Code; providedpursuant to a determination by a court, however, that no such amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any Employer shall pay an amount equal to such Underpayment shall be promptly paid by the Company to or for the benefit Employee within ten (10) days of Executive such determination together with interest on such amount at the applicable federal rate provided for in Section 7872(f)(2)(A) from the date such amount would have been paid to Employee until the date of the Codepayment.