Common use of Parachute Payments Clause in Contracts

Parachute Payments. (a) Notwithstanding any other provision in this Agreement, in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any 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 required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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.

Parachute Payments. If any payment or benefit (a) Notwithstanding any other provision in including payments and benefits pursuant to this Agreement, ) that Executive would receive in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsTransaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount Company shall cause to be determined, before any amounts of the Payments shall be equal Transaction Payment are paid to either (x) the largest portion Service Provider, which of the Payments that following two alternative forms of payment 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 ExecutiveService Provider’s receipt, on an after-tax basis, of the greatest greater amount of the Payments Transaction Payment notwithstanding that all or some portion of the Payments Transaction Payment may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that Service Provider receives the largest payment possible without the imposition of the Excise Tax (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 cash Payments otherwise payable such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to Executive that are exempt from Section 409A 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 section shall be made in writing by the Company’s independent public accountants (the “Accountants”), 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, 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; (2) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A . Executive and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this section as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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.

Parachute Payments. (a) Notwithstanding any other provision anything to the contrary in this Agreement, in if it is determined (as hereafter provided) that any payment or distribution to or for Key Employee’s benefit, whether paid or payable or distributed or distributable pursuant to the event terms of this Agreement or otherwise pursuant to or by reason of any payments other agreement, policy, plan, program or benefits Executive receives arrangement, including without limitation any stock option, stock appreciation right or would become entitled to receive from similar right, or the Company, lapse or termination of any person whose actions result in a Change in Control restriction on or the vesting or exercisability of any person affiliated with of the Company or such person foregoing (in the aggregate, the “Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the CodePayment”), and (ii) but for this sentence, would be subject to the excise tax imposed by Section 4999 of the Code (or any similar or successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), then Key Employee shall be entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that, after payment by Key Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, Key Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Payments shall be treated as “parachute payments” within the meaning of section 28OG(b)(2) of the Code, and all “excess parachute payments” within the meaning of section 28OG(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and reasonably acceptable to Key Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 28OG(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 28OG(b)(4)(B) of the Code, in excess of the “base amount” (as such term is defined in section 28OG(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Payments which shall be equal to either (x) the largest portion of the Payments that would result in no portion of the Payments being treated as subject to the Excise Tax shall be equal to the lesser of (the “Reduced Amount”), or (yA) the full total amount of the Payments, whichever Payments or (B) the amount of excess parachute payments within the meaning of section 28OG(b)(1) of the foregoing amountsCode (after applying clause (i), after taking above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of sections 28OG(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Key Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Key Employee’s residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account all applicable hereunder at the time of Key Employee’s termination of employment, Key Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local employment taxesincome tax imposed on the Gross-Up Payment being repaid by Key Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income taxes, and tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (all computed including by reason of any payment the existence or amount of which cannot be determined at the highest marginal rate applicable time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Key Employee with respect to individuals such excess) at the time that the amount of such excess is finally determined. Key Employee and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Severance Payments. Notwithstanding anything in this Agreement to the contrary, in no event shall payments under this Section be made later than the end of Key Employee’s taxable year following the taxable year in which the Payments are to be made), results in Executive’s receipt, related Excise Tax is remitted by or on an after-tax basis, behalf 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 required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vestingKey Employee.

Parachute Payments. (a) Notwithstanding any other provision anything to the contrary in this Agreement, in if it is determined (as hereafter provided) that any payment or distribution to or for Key Employee’s benefit, whether paid or payable or distributed or distributable pursuant to the event terms of this Agreement or otherwise pursuant to or by reason of any payments other agreement, policy, plan, program or benefits Executive receives arrangement, including without limitation any stock option, stock appreciation right or would become entitled to receive from similar right, or the Company, lapse or termination of any person whose actions result in a Change in Control restriction on or the vesting or exercisability of any person affiliated with of the Company or such person foregoing (in the aggregate, the “Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the CodePayment”), and (ii) but for this sentence, would be subject to the excise tax imposed by Section 4999 of the Code (or any similar or successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), then Key Employee shall be entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that, after payment by Key Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, Key Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Payments shall be treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and reasonably acceptable to Key Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as such term is defined in section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Payments which shall be equal to either (x) the largest portion of the Payments that would result in no portion of the Payments being treated as subject to the Excise Tax shall be equal to the lesser of (the “Reduced Amount”), or (yA) the full total amount of the Payments, whichever Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(1) of the foregoing amountsCode (after applying clause (i), after taking above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Key Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Key Employee’s residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account all applicable hereunder at the time of Key Employee’s termination of employment, Key Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local employment taxesincome tax imposed on the Gross-Up Payment being repaid by Key Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income taxes, and tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (all computed including by reason of any payment the existence or amount of which cannot be determined at the highest marginal rate applicable time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Key Employee with respect to individuals such excess) at the time that the amount of such excess is finally determined. Key Employee and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Severance Payments. Notwithstanding anything in this Agreement to the contrary, in no event shall payments under this Section be made later than the end of Key Employee’s taxable year following the taxable year in which the Payments are to be made), results in Executive’s receipt, related Excise Tax is remitted by or on an after-tax basis, behalf 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 required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vestingKey Employee.

Parachute Payments. (a) Notwithstanding If any other provision in this Agreement, in the event any payments payment or benefits benefit Executive receives or would become entitled to receive from the Company, any person whose actions result Company or otherwise in connection with a Change in of Control or any person affiliated with the Company or such person other similar transaction (in the aggregate, the a “Payments280G Payment”) would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments any such 280G Payment (a "Payment") shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment (after reduction) being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of amount (i.e., the foregoing amountsamount 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments greater economic benefit notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments a Payment is required so that pursuant to the amount preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the Payments equals the Reduced Amountpreceding sentence, the Payments reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the following order: (1) reduction of cash Payments otherwise payable Payment being subject to Executive that are exempt from taxes pursuant to Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) Code that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits would not otherwise payable be subject to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable taxes pursuant to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as determined by the Company. If acceleration case may be, shall be modified so as to avoid the imposition of vesting of Executive’s stock options or other equity awards is to be reduced taxes pursuant to clauses (2) or (3) Section 409A 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 Code as follows: (A) as a first priority such acceleration priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are “deferred compensation” within the vesting installment with meaning of Section 409A of the latest vestingCode shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code.

Parachute Payments. (ai) It is the objective of this Agreement to maximize Executive’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 the Code. Notwithstanding any other provision in provisions of this Agreement, in the event that any payments payment or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with benefit by the Company or otherwise to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such person payments and benefits, including the payments and benefits under Section 3(a) and Section 3(b) hereof, being hereinafter referred to as the “Total Payments”), would be subject (in the aggregate, the “Payments”whole or in part) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of cash severance payments shall first be reduced, and the Payments non-cash severance payments shall thereafter be equal reduced, to either (x) the largest portion of the Payments extent necessary so that would result in no portion of the Total 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 shall be subject to the Excise Tax. If a , but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction in (but after subtracting the net amount of federal, state and local income taxes on such Total Payments is required so that and the amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction phase out of cash Payments otherwise payable itemized deductions and personal exemptions attributable 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vestingunreduced Total Payments).

Parachute Payments. (a) Notwithstanding any other provision Anything in this AgreementAgreement to the contrary notwithstanding, in the event that it shall be determined that any payments payment or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with distribution by the Company or such person (in its Affiliates to or for the aggregatebenefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would constitute an “Payments”) would (i) constitute a “excess parachute payment” within the meaning of Section §280G of the CodeInternal Revenue Code of 1986, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision as amended (the “Excise TaxCode”)) (each such payment, then the amount of the Payments shall be equal to either (xa “Parachute Payment”) the largest portion of the Payments that and would result in no portion the imposition on the Employee of an excise tax under Code §4999, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be paid an amount in cash equal to the sum of the excise taxes payable by the Employee by reason of receiving Parachute Payments being subject plus the amount necessary to place the Excise Tax Employee in the same after-tax position (the “Reduced Amount”), or (y) the full amount of the Payments, whichever of the foregoing amounts, after taking into account any and all applicable federal, state and local employment taxesexcise, income taxes, and the Excise Tax (all computed or other taxes at the highest marginal rate possible applicable rates on such Parachute Payments (including, without limitation, any payments under this subparagraph 11.2(a)) as if no excise taxes had been imposed with respect to individuals in Parachute Payments (the year in which “Parachute Gross-up”). Any Parachute Gross-up otherwise required by this subparagraph 11.2(a) shall not be made later than the Payments are time of the corresponding payment or benefit hereunder giving rise to be madethe underlying Code §4999 excise tax (to the extent such determination has been made prior to such time), results in Executive’s receipt, on an after-tax basis, even if the payment of the greatest amount of excise tax is not required under the Payments notwithstanding that all Code until a later time. Any Parachute Gross-up otherwise required under this subparagraph 11.2(a) shall be made whether or some portion of not there is a Change in Control, whether or not payments or benefits are payable under this Agreement, whether or not the Payments may be subject payments or benefits giving rise to the Excise Tax. If Parachute Gross-up are made in respect of a reduction Change in Control and whether or not the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by the Company. If acceleration of vesting of ExecutiveEmployee’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 employment with the latest vestingEmployer shall have been terminated.

Parachute Payments. (a) Notwithstanding any other provision in this Agreement, in In the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would that (i) any severance payment, insurance benefits, accelerated vesting, pro-rated bonus or other benefit payable to Executive shall constitute a “parachute payment” within the meaning of Code Section 280G of the Code, (“Parachute Payment”) and (ii) but for this sentence, be subject to the excise tax imposed by Code Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), and (ii) if the payments to Executive were reduced to the minimum extent necessary so that such payments did not constitute Parachute Payments, the net benefits retained by Executive after the deduction of any federal, state or local income taxes would be greater than the net benefits retained by Executive if there was no such reduction after the deduction of Excise Tax and any federal, state or local income taxes, then such payments shall be so reduced. Such reduction shall be accomplished in any manner deemed appropriate by Flora Management after consultation with Executive. For purposes of making the foregoing determination: (1) Parachute Payments provided under arrangements with Executive other than this Agreement, if any, shall be taken into account in determining the total amount of Parachute Payments received by Executive so that the amount of the Parachute Payments that are attributable to provisions of this Agreement is maximized; and (2) Executive shall be equal deemed 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 pay federal, state and local employment taxes, income taxes, and the Excise Tax (all computed taxes at the highest marginal rate applicable to individuals in the of taxation for Executive’s taxable year in which the Parachute Payments are to be made), results includable in Executive’s receiptincome for purposes of federal, on an state and local income taxation. The determination of whether the Excise Tax is payable, and the amount of any reduction necessary to make the Excise Tax not payable, as well as whether such a reduction would result in greater after-tax basisbenefits to Executive, shall be made in writing in good faith by a nationally-recognized independent certified public accounting firm approved by Flora Management and Executive, such approval not to be unreasonably withheld (the “Accounting Firm”). For purposes of making the calculations required by this Section 11(a), to the extent not otherwise specified herein, reasonable assumptions and approximations may be made with respect to applicable taxes and reasonable, good faith interpretations of the greatest amount Code may be relied upon. Flora Management and Executive shall furnish such information and documents as may be reasonably requested in connection with the performance of the Payments notwithstanding that calculations under this Section 11(a). Flora Management shall bear all or some portion costs incurred in connection with the performance of the Payments may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from calculations contemplated by this 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vesting11(a).

Parachute Payments. (a) Notwithstanding any other provision in this Agreement, in In the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would that (i) any severance payment, insurance benefits, accelerated vesting, pro-rated bonus or other benefit payable to Executive shall constitute a “parachute payment” within the meaning of Code Section 280G of the Code, (“Parachute Payment”) and (ii) but for this sentence, be subject to the excise tax imposed by Code Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), and (ii) if the payments to Executive were reduced to the minimum extent necessary so that such payments did not constitute Parachute Payments, the net benefits retained by Executive after the deduction of any federal, state or local income taxes would be greater than the net benefits retained by Executive if there was no such reduction after the deduction of Excise Tax and any federal, state or local income taxes, then such payments shall be so reduced. Such reduction shall be accomplished in any manner deemed appropriate by Playa Management after consultation with Executive. For purposes of making the foregoing determination: (1) Parachute Payments provided under arrangements with Executive other than this Agreement, if any, shall be taken into account in determining the total amount of Parachute Payments received by Executive so that the amount of the Parachute Payments that are attributable to provisions of this Agreement is maximized; and (2) Executive shall be equal deemed 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 pay federal, state and local employment taxes, income taxes, and the Excise Tax (all computed taxes at the highest marginal rate applicable to individuals in the of taxation for Executive’s taxable year in which the Parachute Payments are to be made), results includable in Executive’s receiptincome for purposes of federal, on an state and local income taxation. The determination of whether the Excise Tax is payable, and the amount of any reduction necessary to make the Excise Tax not payable, as well as whether such a reduction would result in greater after-tax basisbenefits to Executive, shall be made in writing in good faith by a nationally-recognized independent certified public accounting firm approved by Playa Management and Executive, such approval not to be unreasonably withheld (the “Accounting Firm”). For purposes of making the calculations required by this Section 11(a), to the extent not otherwise specified herein, reasonable assumptions and approximations may be made with respect to applicable taxes and reasonable, good faith interpretations of the greatest amount Code may be relied upon. Playa Management and Executive shall furnish such information and documents as may be reasonably requested in connection with the performance of the Payments notwithstanding that calculations under this Section 11(a). Playa Management shall bear all or some portion costs incurred in connection with the performance of the Payments may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from calculations contemplated by this 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vesting11(a).

Parachute Payments. (a) Notwithstanding any other provision 6.7.1 Anything in this AgreementAgreement to the contrary notwithstanding, in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in that a Change in Control occurs and it shall be determined that any payment or any person affiliated with distribution by the Company or such person (in its Affiliates to or for the aggregatebenefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would constitute an “Payments”) would (i) constitute a “excess parachute payment” within the meaning of Section section 280G of the CodeCode (each such payment, a “Parachute Payment”) and (ii) but for this sentence, be subject to would result in the imposition on the Employee of an excise tax imposed by Section under section 4999 of the Code Code, then, in addition to any other benefits to which the Employee is entitled under this Agreement or any similar or successor provision (otherwise, the “Excise Tax”), then Employee shall be paid an amount in cash equal to the sum of the excise taxes payable by the Employee by reason of receiving Parachute Payments plus the amount of necessary to place the Payments shall be equal to either Employee in the same after-tax position (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 any and all applicable federal, state and local employment taxesexcise, income taxes, and the Excise Tax (all computed or other taxes at the highest marginal rate possible applicable rates on such Parachute Payments (including, without limitation, any payments under this Subparagraph 6.7.1) as if no excise taxes had been imposed with respect to individuals Parachute Payments (the “Parachute Gross-up”). In no event shall a Parachute Gross-up be payable under this subparagraph 6.7.1 in the year absence of a Change in which Control. Any Parachute Gross-up otherwise required by this Subparagraph 6.7.1 shall not be made later than the Payments are time of the corresponding payment or benefit hereunder giving rise to the underlying section 4999 of the Code excise tax (to the extent such determination has been made prior to such time), even if the payment of the excise tax is not required under the Code until a later time. Any Parachute Gross-up otherwise required under this Subparagraph 6.7.1 shall be made), results in Executivewhether or not payments or benefits are payable under this Agreement, and whether or not the Employee’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 required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 employment with the latest vestingCompany shall have been terminated.

Parachute Payments. (a) Notwithstanding anything to the contrary herein or in any other provision in this AgreementBenefit Plan, in the event it shall be determined that any payments monetary amounts or benefits Executive receives due or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with payable by the Company to Executive (whether paid or such person (in the aggregatepayable, the “Payments”or due or distributed) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be are or will become subject to the any excise tax imposed by under Section 4999 of the Code or any similar or successor provision (the collectively “Excise TaxTaxes”), then the amount of the Payments amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be equal reduced to either (x) the largest portion of the Payments extent necessary so that would result in no portion of the Payments being such amounts or benefits shall be subject to the Excise Tax Taxes, but only if (the “Reduced Amount”), or (yi) the full net amount of such amounts and benefits, as so reduced (and after the Payments, whichever imposition of the foregoing amounts, after taking into account all applicable total amount of taxes under federal, state and local employment taxeslaw on such amounts and benefits), income taxesis greater than (ii) the excess of (A) the net amount of such amounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the amount of Excise Tax (all computed at the highest marginal rate applicable Taxes to individuals which Executive would be subject on such unreduced amounts and benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the year in which absence of such reduction, the Payments are Company and Executive shall make good faith efforts to be made), results in Executive’s receipt, on an after-tax basis, of seek to identify and pursue reasonable action to avoid or reduce the greatest amount of the Payments notwithstanding Excise Taxes; provided, however, that all or some portion of the Payments may this sentence shall not be subject construed to the Excise Tax. If a require Executive to accept any further reduction in the Payments amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 10(d) shall override and control any inconsistent provision in the LTIP. All determinations required to be made under this Section 10(d), including whether reduction is required so that required, the amount of such reduction and the Payments equals the Reduced Amountassumptions to be utilized in arriving at such determination, the Payments shall be reduced made in good faith by an independent accounting firm selected by the following order: Company in accordance with applicable law (1) reduction of cash Payments otherwise payable the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive that are exempt from Section 409A Executive. All fees and expenses 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined Accounting Firm shall be borne solely by the Company. If acceleration the Accounting Firm determines that no excise tax under Section 4999 of vesting of the Code is payable by Executive, the Company shall request that the Accounting Firm furnish Executive with written guidance that failure to report such excise tax on Executive’s stock options applicable federal income tax return would not result in the imposition of a negligence 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 vestingsimilar penalty.

Parachute Payments. (a) Notwithstanding any other provision anything contained in this AgreementAgreement to the contrary, in to the event any extent that payments and benefits provided under this Agreement or otherwise (including the acceleration of vesting of equity awards) to Executive (such payments or benefits Executive receives or would become entitled are collectively referred to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, as the “Payments”) would be 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 that would constitute a “parachute paymentpayments” within the meaning of Section 280G of the Code, and 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 (which may be, but for will not be required to be, the 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 sentenceSection 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 shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code 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 taxesCode, and the Excise Tax (all computed at Company shall pay such reduced amount to him. If the highest marginal rate applicable to individuals in the year in which the Payments are to be madeAccounting Firm determines that a reduction is required by this Section 9(d), results in Executive’s receipt, on an after-tax basis, and any Payment constitutes a “deferral of compensation” within the meaning of Section 409A 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 required so that the amount of the Payments equals the Reduced AmountCode, then the Payments shall be reduced in the following order: ; (1a) reduction of in the cash Payments severance payments described herein (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); (b) 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 are exempt from Section 409A of the Codeis, later payments shall be reduced before earlier payments); (2c) cancellation of accelerated 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 (other than stock optionsc) above; provided, however that are exempt from Section 409A of in the Code; (3) cancellation of accelerated vesting of stock options event that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 sentencecancelled, such acceleration of vesting shall be cancelled by first canceling in the reverse order of the date of grant of such acceleration for the vesting installment equity awards, that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingis, later equity awards shall be canceled before earlier equity awards.

Parachute Payments. (a) Notwithstanding any other provision anything contained in this AgreementAgreement to the contrary, in the event any payments or benefits Executive receives or would become entitled to receive from the Company, based on the advice of its legal or tax counsel, shall compute whether there would be any person whose actions result in a Change in Control or any person affiliated with “excess parachute payments” payable to Executive, within the Company or such person (in meaning of Section 280G of the aggregateCode, taking into account the “Payments”) would (i) constitute a “total ‘‘parachute paymentpayments,” within the meaning of Section 280G of the Code, payable to Executive by the Company under this Agreement and (ii) but for this sentenceany other plan, agreement or otherwise. If there would be subject any excess parachute payments, the Company, based on the advice of its legal or tax counsel, shall compute the net after-tax proceeds related to such parachute payments, taking into account the excise tax imposed by Section 4999 of the Code or any similar or successor provision Code, as if: (i) such parachute payments were reduced, but not below zero, such that the total parachute payments payable to Executive would not exceed three (3) times the “Excise Tax”), then the amount base amount” as defined in Section 280G of the Payments shall be equal to either Code, less One Dollar (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”$1.00), ; or (yii) the full amount of such parachute payments were not reduced. If reducing the Payments, whichever amount 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 such parachute payments otherwise payable would result in the year in which the Payments are to be made), results in Executive’s receipt, on an a greater after-tax basisamount to Executive, of such reduced amount shall be paid to Executive and the greatest remainder shall be forfeited. If not reducing such parachute payments otherwise payable would result in a greater after-tax amount of the Payments notwithstanding that all or some portion of the Payments may to Executive, then such parachute payments shall not be subject reduced. If such parachute payments are reduced pursuant to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amountforegoing, the Payments shall they will be reduced in the following order: (1) reduction of first, by reducing any cash Payments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (severance payments, then by reducing any fringe or other than stock options) that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of severance benefits, and finally by reducing any other payments and or benefits otherwise payable with respect to, or measured by, the Company’s common stock (including without limitation by eliminating accelerated vesting, in each case starting with the installment or tranche last eligible to Executive become vested absent the occurrence of a change in control). Notwithstanding the foregoing, to the extent the Parties agree that are exempt from Section 409A any of the Code; and (5foregoing amounts are not parachute payments, such amounts shall not be reduced. To the extent the Parties cannot agree as to whether any of the payments are in fact parachute payments, the Parties will designate, by mutual agreement, an unrelated third-party with tax expertise to make the determination. Notwithstanding any provision of this Section 3.2(d) to the contrary, no amount shall be subject to reduction pursuant to this Section 3.2(d) to the extent the reduction would result in a violation of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vestingapplicable law.

Parachute Payments. (a) Notwithstanding any other provision in 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, in and any other payments and benefits provided or to be provided to the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (any of its Subsidiaries or other Affiliates or any successors thereto constitute "parachute payments" as defined in the aggregate, the “Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code, and ") (iior any successor provision thereto) but for this sentence, ("Parachute Payments") that would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “"Excise Tax”"), then then, except as otherwise provided in the amount of the next sentence, such Parachute Payments shall be equal reduced to either (x) the largest portion of the Payments extent necessary so 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 thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 7(a), then no such reduction shall be made; provided, however, that in such case the provisions of Sections 7(b)(i) and 7(b)(ii) shall not be operative. The determination of the Independent Tax Counsel under this subsection (a) shall be final and binding on all parties hereto. The determination of which payments or benefits to reduce in order to avoid the Excise Tax shall be determined in the sole discretion of the Executive; provided, however, that unless the Executive gives written notice to the Company specifying the order to effectuate the limitations described above within ten (10) days of the Independent Tax Counsel’s determination to make such reduction, the Company shall first reduce those payments or benefits that will cause a dollar-for-dollar reduction in total Parachute Payments, and then by reducing other Parachute Payments, to the Payments is required so that the amount of the Payments equals the Reduced Amountextent possible, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive reverse order beginning with payments or benefits that are exempt to be paid the farthest in time 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 date the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of reduction is to be made. Any notice given by the Code; (4) reduction Executive pursuant to the preceding sentence, unless prohibited by law, shall take precedence over the provisions of any other payments 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 otherwise payable consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Company and shall be acceptable to the Executive that are exempt from Section 409A of (the Code; Executive's acceptance not to be unreasonably withheld), and (5) reduction of any other benefits whose fees and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined disbursements shall be paid 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.

Parachute Payments. (a) Notwithstanding If any other provision in this Agreement, in payment or benefit the event any payments or benefits Executive receives or Employee would become entitled to receive from the Company, any person whose actions result in a Change in Control MIKOHN pursuant to this Agreement or any person affiliated with the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any 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 Employee will receive an additional payment (the “Reduced AmountGross-up”), or (y) the full amount of the Payments, whichever of the foregoing amounts, from MIKOHN such that after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax and all applicable taxes on the Gross-up (all computed at the highest applicable marginal rate applicable to individuals in the year in which the Payments are to be maderate), results in Executivethe Employee’s receipt, on an after-tax basis, of the greatest full amount of the Payments notwithstanding Payment. MIKOHN’s principal outside accounting firm or principal outside tax advisors, as selected by MIKOHN and Employee, will make all determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to MIKOHN and the Employee within fifteen (15) calendar days after the date on which the Employee’s right to a Payment is triggered (if requested at that all time by MIKOHN or some portion of the Payments may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1Employee) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies time as requested by MIKOHN or the Employee. The accounting firm or tax advisors shall furnish MIKOHN and the Employee with Section 409A an opinion reasonably acceptable to the Employee regarding the application of the CodeExcise Tax to such Payment. MIKOHN shall be entitled to rely upon the accounting firm’s or tax advisors’ determinations, 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 sentenceapplicable, such acceleration of vesting which shall be cancelled by first canceling such acceleration for the vesting installment that will vest last final, binding and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingconclusive on Employee and MIKOHN.

Parachute Payments. (a) Notwithstanding any other provision anything contained in this AgreementAgreement to the contrary, in to the event any extent that payments and benefits provided under this Agreement or otherwise (including the acceleration of vesting of equity awards) to Executive (such payments or benefits Executive receives or would become entitled are collectively referred to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, as the “Payments”) would be 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 that would constitute a “parachute paymentpayments” within the meaning of Section 280G of the Code, and 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 (which may be, but for will not be required to be, the 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 sentenceSection 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 shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code 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 taxesCode, and the Excise Tax (all computed at Company shall pay such reduced amount to him. If the highest marginal rate applicable to individuals in the year in which the Payments are to be madeAccounting Firm determines that a reduction is required by this Section 9(d), results in Executive’s receipt, on an after-tax basis, and any Payment constitutes a “deferral of compensation” within the meaning of Section 409A 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 required so that the amount of the Payments equals the Reduced AmountCode, then the Payments shall be reduced in the following order: ; (1a) reduction of in the cash Payments severance payments described herein (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); (b) 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 are exempt from Section 409A of the Codeis, later payments shall be reduced before earlier payments); (2c) cancellation of accelerated 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 (other than stock optionsc) above; provided, however that are exempt from Section 409A of in the Code; (3) cancellation of accelerated vesting of stock options event that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 sentencecancelled, such acceleration of vesting shall be cancelled by first canceling in the reverse order of the date of grant of such acceleration for the vesting installment equity awards, that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingis, later equity awards shall be canceled before earlier equity awards.

Parachute Payments. (a) Notwithstanding any other provision in of this AgreementSection 3, in if it is determined that part or all of the event any payments compensation or benefits Executive receives or would become entitled to receive from be paid to the Company, any person whose actions result Employee under this Agreement in a Change in Control or any person affiliated connection with the Company Employee’s Severance Termination , or such person (in the aggregateunder any other plan, the “Payments”) would (i) constitute arrangement or agreement, constitutes a “parachute payment” within the meaning of Section 280G under section 280G(b)(2) of the CodeInternal Revenue Code of 1986, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”)as amended, then the amount constituting a parachute payment that would otherwise be payable to or for the benefit of the Payments Employee first shall be equal to either deferred (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”greatest extent permitted by such applicable law), or and to the extent not so deferred, shall be reduced (yif 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 full amount of independent public accountants that audited the Payments, whichever of Company’s financial statements for 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 fiscal year preceding the year in which the Payments are to Employee’s employment was terminated, whose determination shall be made), results final and binding in Executive’s receipt, on an after-tax basis, of all cases. Unless the greatest amount of the Payments notwithstanding Employee is given notice that all a payment (or some portion of the Payments may be subject payments) will constitute a parachute payment prior to the Excise Tax. If a reduction in the Payments is required so that the amount earlier of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction receipt of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Code; such payments or (2) cancellation of accelerated vesting of equity awards the tenth business day following his or her Severance Termination, no payment (other than stock optionsor payments) that are exempt from Section 409A shall be deemed to constitute a parachute payment. If the determination made pursuant to this subsection would result in a deferral (to the 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 the Code; (3) cancellation of accelerated vesting of stock options payments that are exempt from Section 409A of would otherwise be paid to the Code; (4) reduction Employee, the Employee may elect, in his sole discretion, which and how much of any other particular entitlement shall be so deferred or reduced (giving effect to any payments and benefits otherwise payable that may have been received prior to Executive that are exempt from Section 409A such termination) and shall advise the Company in writing of his election within 10 days of the Code; determination of the deferral or reduction in payments. If no such election is made by the Employee within such 10-day period, the Company shall determine which and (5) reduction how much of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 entitlement shall be cancelled by first canceling deferred (to the greatest extent permitted under such acceleration applicable law) and, to the extent not so deferred, reduced (to the extent required under such applicable law) and shall notify the Employee promptly of such determination. The Company shall (or shall cause the applicable SPAR Affiliate to) pay to, or distribute to or for the vesting installment that will vest last benefit of, the Employee such amounts as are then due to the Employee under this Agreement and continuing by canceling as a first priority such acceleration shall timely pay to, or distribute to or for the vesting installment with benefit of, the latest vestingEmployee in the future such amounts as become due to the Employee under this Agreement.

Parachute Payments. (a) Notwithstanding If any other provision in this Agreement, in the event any payments payment or benefits Executive receives or benefit you would become entitled to receive from the Company, any person whose actions result Company or otherwise in connection with a Change in Control or any person affiliated with the Company or such person other similar transaction (in the aggregate, the a “Payments280G Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments any such 280G Payment (a “Payment”) shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment (after reduction) being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of amount (i.e., the foregoing amountsamount 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s your receipt, on an after-tax basis, of the greatest amount of the Payments greater economic benefit notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments a Payment is required so that pursuant to the amount preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the Payments equals the Reduced Amountpreceding sentence, the Payments reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for you. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the following order: (1) reduction of cash Payments otherwise payable Payment being subject to Executive that are exempt from taxes pursuant to Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) Code that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits would not otherwise payable be subject to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable taxes pursuant to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, 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 of the Code as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for you as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are “deferred compensation” within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code. Unless you and the Company agree on an alternative accounting firm, the accounting firm engaged by the Company for general tax compliance purposes as of the day prior to the effective date of the change of control transaction triggering the Payment shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control transaction, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to you and the Company within 15 calendar days after the date on which your right to a 280G Payment becomes reasonably likely to occur (if requested at that time by you or the Company) or such other time as requested by you or the Company. If acceleration of vesting of Executive’s stock options or other equity awards is to be reduced you receive a Payment for which the Reduced Amount was determined pursuant to clauses clause (2) or (3x) of the immediately first paragraph of this Section and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, you shall promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, you shall have no obligation to return any portion of the Payment pursuant to the 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.

Parachute Payments. (a) Notwithstanding If there is a change in ownership or control of the Company that would cause any other provision in this Agreement, in the event any payments payment or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with distribution by the Company or such any other person or entity to the Executive or for the Executive's benefit (in whether paid or payable or distributed or distributable pursuant to the aggregate, the “Payments”terms of this Agreement or otherwise) would (ia "Payment") constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any similar or successor provision of 1986, as amended (the “"Code") (such excise tax, together with any interest or penalties incurred by the Executive with respect to such excise tax, the "Excise Tax”"), then the Executive will receive the greatest of the following, whichever gives the Executive the highest net after-tax amount (after taking into account federal, state, local and social security taxes): (a) the Payments or (b) one dollar less than the amount of the Payments shall be equal to either (x) the largest portion of the Payments that would result in no portion of subject the Payments being subject Executive to the Excise Tax (the “Reduced "Safe Harbor 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 required necessary so that the amount Payments equal the Safe Harbor Amount and none of the Payments equals constitutes non-qualified deferred compensation (within the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction meaning of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cancellation ), then the reduction shall occur in the manner the Executive elects in writing prior to the date of accelerated vesting payment. If any Payment constitutes non-qualified deferred compensation or if the Executive fails to elect an order, then the Payments to be reduced will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of equity awards (other than stock options) that are exempt from when payment would have been made to the Executive, until the reduction is achieved. All determinations required to be made under this Section 409A 7.16, including whether and when the Safe Harbor Amount is required and the amount of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A reduction of the Code; Payments and the assumptions to be utilized in arriving at such determination, shall be made by a certified public accounting firm designated by the Company (4) reduction of any other payments the "Accounting Firm"). All fees and benefits otherwise payable to Executive that are exempt from Section 409A expenses of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined Accounting Firm shall be borne solely 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 Any determination by the immediately preceding sentence, such acceleration of vesting Accounting Firm shall be cancelled by first canceling such acceleration for binding upon Company and the vesting installment that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingExecutive.

Parachute Payments. If Independent Tax Counsel (aas that term is defined below) Notwithstanding any other provision in determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, in and any other payments and benefits provided or to be provided to the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would (i) any of its subsidiaries or other affiliates or any successors thereto constitute a “parachute paymentpayments” within the meaning of as defined in Section 280G of the Code, and Code (ii“Parachute Payments”) but for this sentence, that would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then then, except as otherwise provided in the amount of the next sentence, such Parachute Payments shall be equal reduced to either the extent the Independent Tax Counsel shall determine is necessary (xbut not below zero) the largest portion of the Payments so 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 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 required so that the amount were not reduced pursuant to this Section 5(f), then no such reduction shall be made. The determination of the Payments equals the Reduced Amount, the Payments which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order: order (1) reduction of cash Payments otherwise payable payments not subject 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 cash payments subject to Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Codeequity-based payments and acceleration; and (4) reduction non-cash forms of benefits. To the extent any other payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(f) shall be final and binding on all parties hereto. For purposes of this Section 5(f), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits otherwise payable to Executive that are exempt from Section 409A consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Code; Board, and (5) reduction of any other benefits whose fees and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined disbursements shall be paid 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.

Parachute Payments. (a) Notwithstanding If any payment or benefit the Executive would receive pursuant to this Agreement or pursuant to any other provision in this Agreement, agreement with the Employer following a change in the event any payments ownership or benefits Executive receives effective control of the Employer or would become entitled change in the ownership of a substantial portion of the assets of the Employer (which change, as further defined in Section 280G of the Code and regulations promulgated thereunder (“Section 280G”), is referred to receive herein as a “Change in Control”) from the Company, any person whose actions result in a Change in Control Employer or any person affiliated with the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the CodeG, and (ii) but for this sentencesection, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment being subject to the Excise Tax (the “Reduced Amount”)Tax, or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of the foregoing amountsamount, 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 applicable to individuals in the year in which the Payments are to be maderate), results in the Executive’s receipt, on an a net after-tax basis, of the greatest greater amount of the Payments Payment notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments Payment equals the Reduced Amount, the Payments reduction shall be reduced occur in the following order: (1) reduction of cash payments, in the following order: (a) first, Severance Payments otherwise payable to Executive that are exempt from Section 409A under this Agreement, (b) second, severance payments under any other agreement with the Employer and (c) third, any other cash payments under any of the Codeforegoing 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 are exempt from Section 409A vest based on attainment of the Codeperformance measures; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by the Company. If acceleration of vesting of stock options, restricted stock and restricted stock units or any other awards that vest only based on Executive’s stock options or 's continued service to the Employer, taking the last ones scheduled to vest (absent the acceleration) first, and (4) other equity awards is to be reduced pursuant to clauses (2) or (3) non-cash forms 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 vestingbenefits.

Parachute Payments. If Independent Tax Counsel (aas that term is defined below) Notwithstanding any other provision in determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, in and any other payments and benefits provided or to be provided to the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would (i) any of its subsidiaries or other affiliates or any successors thereto constitute a “parachute paymentpayments” within the meaning of as defined in Section 280G of the Code, and Code (ii“Parachute Payments”) but for this sentence, that would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then then, except as otherwise provided in the amount of the next sentence, such Parachute Payments shall be equal reduced to either the extent the Independent Tax Counsel shall determine is necessary (xbut not below zero) the largest portion of the Payments so 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 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 required so that the amount were not reduced pursuant to this Section 5(f), then no such reduction shall be made. The determination of the Payments equals the Reduced Amount, the Payments which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order: order (1) reduction of cash Payments otherwise payable payments not subject 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 cash payments subject to Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Codeequity-based payments and acceleration; and (4) reduction non-cash forms of benefits. To the extent any other payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(f) shall be final and binding on all parties hereto. For purposes of this Section 5(f), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits otherwise payable to Executive that are exempt from Section 409A consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Code; Board, and (5) reduction of any other benefits whose fees and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined disbursements shall be paid by the Company. If acceleration of vesting of The Executive shall have the right, at the Executive’s stock options or other equity awards is own expense, to be reduced pursuant retain Independent Tax Counsel to clauses (2) or (3) of rebut any decision made by the immediately preceding sentenceCompany’s Independent Tax Counsel, who may consider such acceleration of vesting shall be cancelled by first canceling such acceleration for the vesting installment that will vest last rebuttal before making its final and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingbinding determination.

Parachute Payments. (a) Notwithstanding If any other provision in payment or benefit (including payments and benefits pursuant to this Agreement, ) that Executive would receive in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsTransaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount Company shall cause to be determined, before any amounts of the Payments shall be equal Transaction Payment are paid to either (x) the largest portion Executive, which of the Payments that following two alternative forms of payment 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 greater amount of the Payments Transaction Payment notwithstanding that all or some portion of the Payments Transaction Payment may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A payment in full of the Code; entire amount of the Transaction Payment (a “Full Payment”), or (2) cancellation payment of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A only a part of the Code; (3) cancellation of accelerated vesting of stock options Transaction Payment so that are exempt from Section 409A Executive receives the largest payment possible without the imposition of the Code; Excise Tax (4a “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 of any other in payments and and/or benefits otherwise payable shall occur in the manner that results in the greatest economic benefit to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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.determined

Parachute Payments. (a) Notwithstanding If there is a change in ownership or control of the Company that would cause any other provision in this Agreement, in the event any payments payment or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with distribution by the Company or such any other person or entity to the Executive or for the Executive's benefit (in whether paid or payable or distributed or distributable pursuant to the aggregate, the “Payments”terms of this Agreement or otherwise) would (ia "Payment") constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any similar or successor provision of 1986, as amended (the “"Code") (such excise tax, together with any interest or penalties incurred by the Executive with respect to such excise tax, the "Excise Tax”"), then the Executive will receive the greatest of the following, whichever gives the Executive the highest net after-tax amount (after taking into account federal, state, local and social security taxes): (a) the Payments or (b) one dollar less than the amount of the Payments shall be equal to either (x) the largest portion of the Payments that would result in no portion of subject the Payments being subject Executive to the Excise Tax (the “Reduced "Safe Harbor 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 required necessary so that the amount Payments equal the Safe Harbor Amount and none of the Payments equals constitutes non‑qualified deferred compensation (within the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction meaning of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cancellation ), then the reduction shall occur in the manner the Executive elects in writing prior to the date of accelerated vesting payment. If any Payment constitutes non‑qualified deferred compensation or if the Executive fails to elect an order, then the Payments to be reduced will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of equity awards (other than stock options) that are exempt from when payment would have been made to the Executive, until the reduction is achieved. All determinations required to be made under this Section 409A 7.16, including whether and when the Safe Harbor Amount is required and the amount of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A reduction of the Code; Payments and the assumptions to be utilized in arriving at such determination, shall be made by a certified public accounting firm designated by the Company (4) reduction of any other payments the "Accounting Firm"). All fees and benefits otherwise payable to Executive that are exempt from Section 409A expenses of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined Accounting Firm shall be borne solely 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 Any determination by the immediately preceding sentence, such acceleration of vesting Accounting Firm shall be cancelled by first canceling such acceleration for binding upon Company and the vesting installment that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingExecutive.

Parachute Payments. (a) Notwithstanding Except as otherwise provided in an agreement between Executive and the Company, if any other provision in this Agreement, in the event any payments payment or benefits benefit Executive receives or would become entitled to receive from the Company, any person whose actions result Company or otherwise in connection with a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal to the Reduced Amount (as defined herein). The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment being subject to the Excise Tax (the “Reduced Amount”)Tax, or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of the foregoing amountsamount, 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payments Payment notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments Payment equals the Reduced Amount, the Payments reduction shall be reduced occur in the following order: (1) reduction of cash Payments otherwise payable manner that results in the greatest economic benefit to Executive that are exempt from Section 409A Executive. The independent registered public accounting firm engaged by the Company for general audit purposes as of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A day prior to the effective date of the Code; (3event described in Section 280G(b)(2)(A)(i) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; Code shall perform the foregoing calculations. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting such event, the Company 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 determinations by such independent registered public accounting firm required to be made hereunder. The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (430) reduction of any other payments and benefits otherwise payable calendar days after the date on which Executive’s right to Executive a Payment is triggered (if requested at that are exempt from Section 409A of time by the Code; and (5Company or Executive) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A time as reasonably requested by the Company or Executive. Any good faith determinations 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 independent registered public accounting firm made hereunder shall be cancelled by first canceling such acceleration for final, binding and conclusive upon the vesting installment that will vest last Company and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingExecutive.

Parachute Payments. (a) Notwithstanding any other provision in of this AgreementAgreement or of any other agreement, in contract, or understanding heretofore or hereafter entered into by the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with and the Company or its Affiliates, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section 11 (the “Other Agreements”), and notwithstanding any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company or any of its Affiliates for the direct or indirect compensation of the Executive (including groups or classes of participants or beneficiaries of which the Executive is a member), whether or not such person (compensation is deferred, is in cash, or is in the aggregateform of a benefit to or for the Executive (a “Benefit Arrangement”), if the Executive is a “Payments”disqualified individual,” as defined in Section 280G(c) would of the Code, any right to receive any payment or other benefit under this Agreement shall not become payable, exercisable or vested (i) constitute to the extent that such right to payment, exercise, vesting, or benefit, taking into account all other rights, payments, or benefits to or for Executive under the Agreement, all Other Agreements, and all Benefit Arrangements, would cause any payment or benefit to the Executive under this Agreement to be considered a “parachute payment” within the meaning of Section 280G 280G(b)(2) of the Code, Code as then in effect (a “Parachute Payment”) and (ii) but if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by the Executive from the Company or any of its Affiliates under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by Executive without causing any such payment or benefit to be considered a Parachute Payment. In the event that the receipt of any such right to exercise, vesting, payment, or benefit under this Agreement, in conjunction with all other rights, payments, or benefits to or for the Executive under the Agreement, any Other Agreement or any Benefit Arrangement would cause the Executive to be considered to have received a Parachute Payment under this sentence, be subject to Agreement that would have the excise effect of decreasing the after-tax imposed amount received by Section 4999 the Executive as described in clause (ii) of the Code or any similar or successor provision (the “Excise Tax”)preceding sentence, then the amount of Executive shall have the Payments shall right, in the Executive’s sole discretion, to designate those rights, payments, or benefits under this Agreement, any Other Agreements, and any Benefit Arrangements that should be equal reduced or eliminated so as to either (x) avoid having the largest portion of the Payments that would result in no portion of the Payments being subject payment or benefit 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 Executive under this Agreement be deemed to be made)a Parachute Payment; provided, results in Executive’s receipthowever, on an after-tax basisthat, 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 extent any payment or benefit constitutes deferred compensation under Code Section 409A, to the Payments is required so that the amount of the Payments equals the Reduced Amountextent necessary to comply with Code Section 409A, the Payments shall reduction or elimination will be reduced performed in the following order: (1A) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Codepayments; (2B) reduction of COBRA benefits; (C) cancellation of accelerated 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 (other than stock optionsC) above; provided, however that are exempt from Section 409A of in the Code; (3) cancellation of accelerated vesting of stock options event that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 sentencecancelled, such acceleration of vesting shall be cancelled by first canceling in the reverse order of the date of grant of such acceleration for the vesting installment equity awards, that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingis, later granted equity awards shall be canceled before earlier granted equity awards.

Parachute Payments. (a) Notwithstanding any other provision anything in this AgreementAgreement to the contrary, in the event that the Company’s outside, independent accountants shall determine that any payments amount paid or benefits distributed to the Executive receives pursuant to this Agreement (the “Agreement Payments”) shall, as a result of a change in the ownership or would become entitled to receive from effective control of the Company or in the ownership of a substantial portion of the assets of the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would (i) constitute a “parachute payment” payment within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject the aggregate of such parachute payments and any other amounts paid or distributed to the excise tax imposed Executive from any other plans or arrangements maintained by Section 4999 of the Code Company or any similar or successor provision its affiliates (such other payments together with the “Excise Tax”), then the amount of the Agreement Payments shall be equal referred to either (xas the “Total Payments”) would more likely than not, in the largest portion opinion of the Payments that would result in no portion of Company’s accountants, cause the Payments being subject Executive 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, the Agreement Payments shall be reduced, eliminated, or postponed in such amounts as are required to reduce the aggregate “present value” (as that term is defined in Section 280G(d)(4) 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 required so that aggregate present value, the Company shall determine 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 Payments equals period of each such postponement. The Company shall promptly notify the Reduced AmountExecutive of its determinations. If an amount has been paid or distributed to the Executive which should not have been paid or distributed due to the required reduction in aggregate present value, the Payments Executive shall be reduced promptly return such amount to the Company (together with interest at the rate set forth in the following order: (1Section 1274(b)(2)(B) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cancellation ). For purposes of accelerated vesting of equity awards (other determining whether and the extent to which the Total Payments would more likely than stock options) that are exempt from Section 409A not cause the Executive to be subject to the Excise Tax, no portion of the Code; (3) cancellation Total Payments, the receipt of accelerated vesting of stock options that are exempt from Section 409A of which the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Codehas effectively waived in writing, 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 vestingtaken into account.

Parachute Payments. It is the objective of this Agreement to maximize the Executive’s Net After-Tax Benefit (aas defined herein) Notwithstanding any other provision in if payments or benefits provided under this AgreementAgreement are subject to excise tax under Section 4999 of Code. Therefore, in the event it is determined that any payments payment or benefits Executive receives benefit by the Company to or would become entitled for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to receive from the terms of this Agreement or otherwise, including, by example and not by way of limitation, acceleration by the Company or otherwise of the date of vesting or payment or rate of payment under any plan, program or arrangement of the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar interest or successor provision penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the amount Company shall first make a calculation under which such payments or benefits provided to the Executive under this Agreement are reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Payments Code (the “4999 Limit”). The Company shall be equal to either then compare (x) the largest portion Executive’s Net After-Tax Benefit assuming application of the Payments that would result in no portion of the Payments being subject to the Excise Tax (the “Reduced Amount”), or 4999 Limit with (y) the full Executive’s Net After-Tax Benefit without the application of the 4999 Limit and the Executive shall be entitled to the greater of (x) or (y). “Net After-Tax Benefit” shall mean the sum of (i) all payments and benefits which the Executive receives or is then entitled to receive from the Company, less (ii) the amount of federal income taxes payable with respect to the Payments, whichever of the foregoing amounts, after taking into account all applicable federal, state payments and local employment taxes, income taxes, and the Excise Tax benefits described in (all computed i) above calculated at the highest maximum marginal income tax rate applicable to individuals in the for each year in which such payments and benefits shall be paid to the Payments are to be madeExecutive (based upon the rate for such year as set forth in the Code at the time of the first payment of the foregoing), 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 required so that less (iii) the amount of excise taxes imposed with respect to the Payments equals the Reduced Amount, the Payments shall be reduced payments and benefits described in the following order: (1i) reduction of cash Payments otherwise payable to Executive that are exempt from above by Section 409A 4999 of the Code; (2) cancellation . The determination of accelerated vesting whether a payment or benefit constitutes an excess parachute payment shall be made by tax counsel selected by the Company and reasonably acceptable to the Executive. The costs of equity awards (other than stock options) that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined obtaining this determination shall be borne 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.

Parachute Payments. (a) Notwithstanding In the event it shall be determined that (i) any payment or distribution to or for the benefit of the Executive under this Agreement or any other provision in this Agreementplan, in the event any payments arrangement or benefits Executive receives or would become entitled to receive from agreement with the Company, any person whose actions result in a Change in Control or other change in control or any person affiliated with the Company or such person (in the aggregate“Payment” and collectively, the “Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (or any similar federal, state or successor provision local tax that may hereafter be imposed) or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”)) and (ii) the amount of all the Payments that Executive would retain after all federal, then state and local income taxes, Executive’s share of employment taxes, and the Excise Tax on the Payments would be less than the amount Executive would retain after all such taxes if the total amount of the Payments shall be were reduced to an amount equal to either (x) one dollar less than the largest portion of the Payments that minimum amount which would result in no portion of the Payments being becoming subject to the Excise Tax (such reduced amount, the “Reduced Safe Harbor Amount”), or (y) then 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 total amount of the Payments notwithstanding that all or some portion of the Payments may shall be subject payable to Executive shall be reduced to an amount equal to the Excise TaxSafe Harbor Amount. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the The Payments shall be reduced by the Company in its reasonable discretion in the following order: (1A) reduction of any cash Payments severance payments otherwise payable to the Executive that are exempt from Section 409A 409A, (B) reduction of any other cash payments or benefits otherwise payable to the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) Executive that are exempt from Section 409A 409A, but excluding any payment attributable to the acceleration of the Code; (3) cancellation of accelerated vesting of stock options or payment with respect to any equity award that are is exempt from Section 409A of the Code; 409A, (4C) reduction of any other payments and or benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of 409A, but excluding any payment attributable to the Code, as determined by the Company. If acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A, and (D) reduction of Executive’s stock options or other equity awards is any payments attributable to be reduced pursuant to clauses (2) or (3) of the immediately preceding sentence, such acceleration of vesting shall or payment with respect to any equity award that is exempt from Section 409A, in each case beginning with payments that would otherwise be cancelled by first canceling such acceleration for the vesting installment that will vest made last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingin time.

Parachute Payments. (a) Notwithstanding any other provision in of this AgreementAgreement or of any other agreement, in contract, or understanding heretofore or hereafter entered into by the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with and the Company or its Affiliates, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section 11 (the “Other Agreements”), and notwithstanding any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company or any of its Affiliates for the direct or indirect compensation of the Executive (including groups or classes of participants or beneficiaries of which the Executive is a member), whether or not such person (compensation is deferred, is in cash, or is in the aggregateform of a benefit to or for the Executive (a “Benefit Arrangement”), if the Executive is a “Payments”disqualified individual,” as defined in Section 280G(c) would of the Code, any right to receive any payment or other benefit under this Agreement shall not become payable, exercisable or vested (i) constitute to the extent that such right to payment, exercise, vesting, or benefit, taking into account all other rights, payments, or benefits to or for Executive under the Agreement, all Other Agreements, and all Benefit Arrangements, would cause any payment or benefit to the Executive under this Agreement to be considered a “parachute payment” within the meaning of Section 280G 280G(b)(2) of the Code, Code as then in effect (a “Parachute Payment”) and (ii) but if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by the Executive from the Company or any of its Affiliates under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by Executive without causing any such payment or benefit to be considered a Parachute Payment. In the event that the receipt of any such right to exercise, vesting, payment, or benefit under this Agreement, in conjunction with all other rights, payments, or benefits to or for the Executive under the Agreement, any Other Agreement or any Benefit Arrangement would cause the Executive to be considered to have received a Parachute Payment under this sentence, be subject to Agreement that would have the excise effect of decreasing the after-tax imposed amount received by Section 4999 the Executive as described in clause (ii) of the Code or any similar or successor provision (the “Excise Tax”)preceding sentence, then the amount of Executive shall have the Payments shall right, in the Executive’s sole discretion, to designate those rights, payments, or benefits under this Agreement, any Other Agreements, and any Benefit Arrangements that should be equal reduced or eliminated so as to either (x) avoid having the largest portion of the Payments that would result in no portion of the Payments being subject payment or benefit 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 Executive under this Agreement be deemed to be made)a Parachute Payment; provided, results in Executive’s receipthowever, on an after-tax basisthat, 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 extent any payment or benefit constitutes deferred compensation under Code Section 409A, to the Payments is required so that the amount of the Payments equals the Reduced Amountextent necessary to comply with Code Section 409A, the Payments shall reduction or elimination will be reduced performed in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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.:

Parachute Payments. (a) Notwithstanding any other provision anything to the contrary in this Agreement, in the event if any payments payment or benefits benefit Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control Company pursuant to this Agreement or any person affiliated with the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x1) the largest portion of the Payments Payment that would result in no portion of the Payments Payment being subject to the Excise Tax (the “Reduced Amount”), or (y2) the full amount Payment or a portion thereof after payment of the Paymentsapplicable Excise Tax, whichever of the foregoing amounts, amount after taking into account all applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate applicable to individuals in the year in which the Payments are to be maderate), 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 TaxPayment. If a reduction in the Payments payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments Payment equals the Reduced Amount, reduction shall occur in the Payments order of payments Executive elects in writing, provided, however, that such election shall be reduced in subject to Company approval if made on or after the following order: date on which the event that triggers the Payment occurs. The Company’s principal outside accounting firm will make all determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (115) reduction calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of cash Payments otherwise payable the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable no Excise Tax will be imposed with respect to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by the CompanyPayment. 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 The Company shall be cancelled by first canceling such acceleration for entitled to rely upon the vesting installment that will vest last accounting firm’s determinations, which shall be final and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingbinding on all persons.

Parachute Payments. (a) Notwithstanding any other provision anything in this AgreementAgreement to the contrary, in the event it shall be determined that any payments payment or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with distribution by the Company or such any other person (in or entity to or for the aggregate, benefit of the “Payments”) would (i) constitute Executive is a “"parachute payment” " (within the meaning of Section 280G 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 (ii) but for this sentence, would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “"Excise Tax”"), then the amount of the Payments shall be equal reduced (but not below zero) if and to either (x) the largest portion of the Payments extent that such reduction 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's retaining a larger amount, on an after-tax basisbasis (taking into account all federal, state and local income taxes and the imposition of the greatest amount of the Payments notwithstanding that all or some portion of the Payments may be subject to 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 required so that or other "parachute payments," unless the amount of Executive shall have designated otherwise, such reduction shall be implemented first, by reducing any non-cash benefits to the Payments equals extent necessary and, second, by reducing any cash benefits to the Reduced Amountextent necessary. In each case, the Payments reductions shall be reduced 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 application of cash Payments otherwise payable this Section 6 shall be made by a nationally recognized firm of independent accountants, selected by the Executive and satisfactory to Executive that are exempt from Section 409A the Company, whose determination shall be conclusive and binding on all parties. The fees and expenses 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined accountants shall be borne 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.

Parachute Payments. (a) Notwithstanding any other provision in of this AgreementAgreement to the contrary, in the event if any payments payment or benefits benefit Executive receives would receive pursuant to this Agreement or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person otherwise (in the aggregatecollectively, the “Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) and, but for this sentence, would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the aggregate amount of the Payments shall will be equal to either (xi) the largest portion of the Payments that would result in no portion of the Payments (after reduction) being subject to the Excise Tax (the “Reduced Amount”), or (yii) the full amount of the entire Payments, whichever of the foregoing amounts, 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 applicable to individuals rate, net of the maximum reduction in the year in federal income taxes which the Payments are to could be madeobtained from a deduction of such state and local taxes), 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 TaxPayments. If a Any reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall by this Section will be reduced made in the following order: (1A) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Codepayments; (2B) cancellation reduction of accelerated vesting of equity awards (Equity Awards other than stock options) that are exempt from Section 409A of the Code; (3C) cancellation reduction of accelerated vesting of stock options that are exempt from Section 409A of the Codeoptions; and (4D) reduction of any other payments and benefits otherwise payable paid or provided to Executive Executive. In the event that are exempt from Section 409A acceleration of vesting of Equity Awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the Code; and (5) reduction date of any other benefits and payments otherwise payable to Executive grant of such Equity Awards. If two or more Equity Awards are granted on the same date, the accelerated vesting of each award will be reduced on a pro-rata basis or such other manner that complies with Section 409A basis. The professional firm engaged by the Company for general tax purposes as of the Code, as determined day prior to the date of the event that might reasonably be anticipated to result in Payments that would otherwise be subject to the Excise Tax will perform the foregoing calculations. If the tax firm so engaged by the CompanyCompany is serving as accountant or auditor for the acquiring company, the Company will appoint a nationally recognized tax firm to make the determinations required by this Section. If acceleration of vesting of Executive’s stock options or other equity awards is The Company will bear all expenses with respect to the determinations by the tax firm required to be reduced pursuant made by this Section. The Company and Executive shall furnish the tax firm such information and documents as the tax firm may reasonably request in order to clauses (2) or (3) make its required determination. The tax firm will provide its calculations, together with detailed supporting documentation, to the Company and Executive as soon as practicable following its engagement. Any good faith determinations of the immediately preceding sentencetax firm made hereunder will be final, such acceleration of vesting shall be cancelled by first canceling such acceleration for binding and conclusive upon the vesting installment that will vest last Company and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingExecutive.

Parachute Payments. If any payment or benefit (a) Notwithstanding any other provision in including payments and benefits pursuant to this Agreement, ) that Executive would receive in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in of Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsTransaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (ii) but for this sentenceParagraph , would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount Company shall cause to be determined, before any amounts of the Payments shall be equal Transaction Payment are paid to either (x) the largest portion Executive, which of the Payments that following two alternative forms of payment 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 greater amount of the Payments Transaction Payment notwithstanding that all or some portion of the Payments Transaction Payment may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (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 cash Payments otherwise payable such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to Executive that are exempt from Section 409A 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 (the “Accountants”), whose determination shall be conclusive and binding upon Executive 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 Sections 280G and 4999 of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A . Executive and the Company 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 as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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.

Parachute Payments. (a) Notwithstanding any other provision in this Agreement, in In the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would that (i) any severance payment, insurance benefits, accelerated vesting, pro-rated bonus or other benefit payable to Executive shall constitute a “parachute payment” within the meaning of Code Section 280G of the Code, (“Parachute Payment”) and (ii) but for this sentence, be subject to the excise tax imposed by Code Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), and (ii) if the payments to Executive were reduced to the minimum extent necessary so that such payments did not constitute Parachute Payments, the net benefits retained by Executive after the deduction of any federal, state or local income taxes would be greater than the net benefits retained by Executive if there was no such reduction after the deduction of Excise Tax and any federal, state or local income taxes, then such payments shall be so reduced. Such reduction shall be accomplished in any manner deemed appropriate by Playa Resorts after consultation with Executive. For purposes of making the foregoing determination: (1) Parachute Payments provided under arrangements with Executive other than this Agreement, if any, shall be taken into account in determining the total amount of Parachute Payments received by Executive so that the amount of the Parachute Payments that are attributable to provisions of this Agreement is maximized; and (2) Executive shall be equal deemed 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 pay federal, state and local employment taxes, income taxes, and the Excise Tax (all computed taxes at the highest marginal rate applicable to individuals in the of taxation for Executive’s taxable year in which the Parachute Payments are to be made), results includable in Executive’s receiptincome for purposes of federal, on an state and local income taxation. The determination of whether the Excise Tax is payable, and the amount of any reduction necessary to make the Excise Tax not payable, as well as whether such a reduction would result in greater after-tax basisbenefits to Executive, shall be made in writing in good faith by a nationally-recognized independent certified public accounting firm approved by Playa Resorts and Executive, such approval not to be unreasonably withheld (the “Accounting Firm”). For purposes of making the calculations required by this Section 11(a), to the extent not otherwise specified herein, reasonable assumptions and approximations may be made with respect to applicable taxes and reasonable, good faith interpretations of the greatest amount Code may be relied upon. Playa Resorts and Executive shall furnish such information and documents as may be reasonably requested in connection with the performance of the Payments notwithstanding that calculations under this Section 11(a). Playa Resorts shall bear all or some portion costs incurred in connection with the performance of the Payments may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from calculations contemplated by this 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vesting11(a).

Parachute Payments. (a) Notwithstanding If any other provision in this Agreement, in the event any payments payment or benefits benefit Executive receives or would become entitled to receive from the Company, any person whose actions result Company or otherwise in connection with a Change in of Control or any person affiliated with the Company or such person other similar transaction (in the aggregate, the a “Payments280G Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments any such 280G Payment (a “Payment”) shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment (after reduction) being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of amount (i.e., the foregoing amountsamount 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments greater economic benefit notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments a Payment is required so that pursuant to the amount preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the Payments equals the Reduced Amountpreceding sentence, the Payments reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the following order: (1) reduction of cash Payments otherwise payable Payment being subject to Executive that are exempt from taxes pursuant to Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) Code that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits would not otherwise payable be subject to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable taxes pursuant to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as determined by the Company. If acceleration case may be, shall be modified so as to avoid the imposition of vesting of Executive’s stock options or other equity awards is to be reduced taxes pursuant to clauses (2) or (3) Section 409A 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 Code as follows: (A) as a first priority such acceleration priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are “deferred compensation” within the vesting installment with meaning of Section 409A of the latest vestingCode shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code.

Parachute Payments. (a) Notwithstanding any other provision anything contained in this AgreementAgreement to the contrary, in the event any payments or benefits Executive receives or would become entitled to receive from the Company, based on the advice of its legal or tax counsel, shall compute whether there would be any person whose actions result in a Change in Control or any person affiliated with “excess parachute payments” payable to Executive, within the Company or such person (in meaning of Section 280G of the aggregateCode, taking into account the “Payments”) would (i) constitute a “total ‘‘parachute paymentpayments,” within the meaning of Section 280G of the Code, payable to Executive by the Company under this Agreement and (ii) but for this sentenceany other plan, agreement or otherwise. If there would be subject any excess parachute payments, the Company, based on the advice of its legal or tax counsel, shall compute the net after-tax proceeds related to such parachute payments, taking into account the excise tax imposed by Section 4999 of the Code or any similar or successor provision Code, as if (i) such parachute payments were reduced, but not below zero, such that the total parachute payments payable to Executive would not exceed three (3) times the “Excise Tax”), then the amount base amount” as defined in Section 280G of the Payments shall be equal to either Code, less One Dollar (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”$1.00), or (yii) the full amount of such parachute payments were not reduced. If reducing the Payments, whichever amount 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 such parachute payments otherwise payable would result in the year in which the Payments are to be made), results in Executive’s receipt, on an a greater after-tax basisamount to Executive, of such reduced amount shall be paid to Executive and the greatest remainder shall be forfeited. If not reducing such parachute payments otherwise payable would result in a greater after-tax amount of the Payments notwithstanding that all or some portion of the Payments may to Executive, then such parachute payments shall not be subject reduced. If such parachute payments are reduced pursuant to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amountforegoing, the Payments shall they will be reduced in the following order: (1) reduction of first, by reducing any cash Payments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (severance payments, then by reducing any fringe or other than stock options) that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of severance benefits, and finally by reducing any other payments and or benefits otherwise payable with respect to, or measured by, the Company’s common stock (including without limitation by eliminating accelerated vesting, in each case starting with the installment or tranche last eligible to Executive that are exempt from Section 409A become vested absent the occurrence of the Code; and Change in Control (5as defined in the Company’s 2014 Incentive Plan)). Notwithstanding the foregoing, to the extent the parties agree that any of the foregoing amounts are not parachute payments, such amounts shall not be reduced. To the extent the parties cannot agree as to whether any of the payments are in fact parachute payments, the parties will designate, by mutual agreement, an unrelated third-party with tax expertise to make the determination. Notwithstanding any provision of this Section 3.2(d) to the contrary, no amount shall be subject to reduction pursuant to this Section 3.2(d) to the extent the reduction would result in a violation of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vestingapplicable law.

Parachute Payments. (a) Notwithstanding If any other provision in this Agreement, in the event any payments payment or benefits benefit Executive receives or would become entitled to receive from the Company, any person whose actions result Company or otherwise in connection with a Change in Control or any person affiliated with the Company or such person other similar transaction (in the aggregate, the a “Payments280G Payment”) would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments any such 280G Payment (a "Payment") shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment (after reduction) being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of amount (i.e., the foregoing amountsamount 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments greater economic benefit notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments a Payment is required so that pursuant to the amount preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the Payments equals the Reduced Amountpreceding sentence, the Payments reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the following order: (1) reduction of cash Payments otherwise payable Payment being subject to Executive that are exempt from taxes pursuant to Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) Code that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits would not otherwise payable be subject to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable taxes pursuant to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as determined by the Company. If acceleration case may be, shall be modified so as to avoid the imposition of vesting of Executive’s stock options or other equity awards is to be reduced taxes pursuant to clauses (2) or (3) Section 409A 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 Code as follows: (A) as a first priority such acceleration priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are “deferred compensation” within the vesting installment with meaning of Section 409A of the latest vestingCode shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code.

Parachute Payments. (a) Notwithstanding If any other provision in this Agreement, in the event any payments payment or benefits benefit Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person otherwise in connection with a Fundamental Transaction or other similar transaction (in the aggregate, the a “Payments280G Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments any such 280G Payment (a “Payment”) shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment (after reduction) being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of amount (i.e., the foregoing amountsamount 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments greater economic benefit notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments a Payment is required so that pursuant to the amount preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the Payments equals the Reduced Amountpreceding sentence, the Payments reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the following order: (1) reduction of cash Payments otherwise payable Payment being subject to Executive that are exempt from taxes pursuant to Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) Code that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits would not otherwise payable be subject to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable taxes pursuant to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, then the Reduction Method or the Pro Rata Reduction Method, as determined by the Company. If acceleration case may be, shall be modified so as to avoid the imposition of vesting of Executive’s stock options or other equity awards is to be reduced taxes pursuant to clauses (2) or (3) Section 409A 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 Code as follows: (A) as a first priority such acceleration priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are “deferred compensation” within the vesting installment with meaning of Section 409A of the latest vestingCode shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code.

Parachute Payments. If any payment or benefit (a) Notwithstanding any other provision in including payments and benefits pursuant to this Agreement, in the event any payments or benefits ) Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control Company under this Agreement or any person affiliated with the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentenceparagraph, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following two alternative forms of payment shall be paid to Executive: (A) payment in full of the entire amount of the Payments shall be equal to either Payment (x) the largest portion of the Payments that would result in no portion of the Payments being subject to the Excise Tax (the a “Reduced AmountFull Payment”), or (yB) the full amount payment of only a part of the Payments, whichever Payment so that Executive receives the largest payment possible without the imposition 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 a “Reduced Payment”). A Full Payment shall be made in the year in which event that the Payments are to be made), results in Executive’s receipt, amount received by Executive on an a net after-tax basisbasis is greater than what would be received by Executive on a net after-tax basis if the Reduced Payment were made, of the greatest amount of the Payments notwithstanding that all or some portion of the Payments may otherwise a Reduced Payment shall be subject to the Excise Taxmade. If a Reduced Payment is made, (i) 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 (ii) reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments payments and/or benefits shall be reduced occur in the following order: (1A) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Codepayments; (2B) cancellation of accelerated vesting of equity awards the Options; and (other than stock options) that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4C) reduction of any other payments and benefits otherwise payable paid to Executive that are exempt from Section 409A Executive. The independent registered public accounting firm engaged by the Company for general audit purposes as of the Code; and (5) reduction day prior to the effective date of any other benefits and payments otherwise payable a transaction that results in Payments shall make all determinations required to Executive on a pro-rata basis or be made under this Section 6. The Company shall bear all expenses with respect to the determinations by such other manner that complies with Section 409A independent registered public accounting firm required to be made hereunder. Any good faith determinations 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 accounting firm made hereunder shall be cancelled by first canceling such acceleration for final, binding and conclusive upon the vesting installment that will vest last Company and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingExecutive.

Parachute Payments. (a) Notwithstanding If any other provision in payment or benefit (including payments and benefits pursuant to this Agreement, ) that Executive would receive in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsTransaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount Company shall cause to be determined, before any amounts of the Payments shall be equal Transaction Payment are paid to either (x) the largest portion Executive, which of the Payments that following two alternative forms of payment 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 greater amount of the Payments Transaction Payment notwithstanding that all or some portion of the Payments Transaction Payment may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A payment in full of the Code; entire amount of the Transaction Payment (a “Full Payment”), or (2) cancellation payment of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A only a part of the Code; (3) cancellation of accelerated vesting of stock options Transaction Payment so that are exempt from Section 409A Executive receives the largest payment possible without the imposition of the Code; Excise Tax (4a “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 of any other in payments and and/or benefits otherwise payable shall occur in the manner that results in the greatest economic benefit to Executive that are exempt from Section 409A as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by the Company. If acceleration of vesting of Executive’s stock options or other equity awards is to Transaction Payment shall 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 vestingpro rata.

Parachute Payments. (a) Notwithstanding any other provision in this Agreement, in the event If aggregate amount of any payments or benefits under this Agreement, either alone or together with any other payment, benefit, transfer of property, or acceleration of vesting or payment, which the Executive receives or would become entitled has a right to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with entity (the Company or such person (in the aggregate"Total Payments"), the “Payments”) would (i) constitute a “nondeductible "excess parachute payment” within the meaning of " (as defined in Section 280G of the Code), then the payments or benefits under this Agreement shall be reduced (but not below zero) to the 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: (i) first, 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 (iiiii) but 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, after reduction for this sentence, be subject to the any applicable federal excise tax imposed by Section 4999 of the Code or any similar or successor provision (and federal income tax imposed by the “Excise Tax”)Code, then the total payment accruing to the Executive, would be less than the amount of the Total 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, as reduced under said first sentence and after taking into account all applicable federal, state and local employment taxes, reduction for federal 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 required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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.

Parachute Payments. (a) Notwithstanding any other provision in If Independent Tax Counsel (as defined below) determines that the aggregate payments and benefits provided or to be provided to the Employee pursuant to this Agreement, in and any other payments and benefits provided or to be provided to the event any payments or benefits Executive receives or would become entitled to receive Employee from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would (i) any of its Affiliates or any successors thereto constitute a “parachute paymentpayments” within the meaning of as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, and ”) (iior any successor provision thereto) but for this sentence, (“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then then, except as otherwise provided in the amount of the next sentence, such Parachute Payments shall be equal reduced to either (x) the largest portion of the Payments extent necessary so 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 thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Employee would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 7(a), then no such reduction shall be made; provided, however, that in such case the provisions of Sections 7(b)(i) and 7(b)(ii) shall not be operative. The determination of the Independent Tax Counsel under this subsection (a) shall be final and binding on all parties hereto. The determination of which payments or benefits to reduce in order to avoid the Excise Tax shall be determined in the sole discretion of the Employee; provided, however, that unless the Employee gives written notice to the Company specifying the order to effectuate the limitations described above within ten (10) days of the Independent Tax Counsel’s determination to make such reduction, the Company shall first reduce those payments or benefits that will cause a dollar-for-dollar reduction in total Parachute Payments, and then by reducing other Parachute Payments, to the Payments is required so that the amount of the Payments equals the Reduced Amountextent possible, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive reverse order beginning with payments or benefits that are exempt to be paid the farthest in time 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 date the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of reduction is to be made. Any notice given by the Code; (4) reduction Employee pursuant to the preceding sentence, unless prohibited by law, shall take precedence over the provisions of any other payments plan, arrangement or agreement governing the Employee’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 otherwise payable consulting firm with expertise in the area of Employee compensation tax law, who shall be selected by the Company and shall be acceptable to Executive that are exempt from Section 409A of the Code; Employee (the Employee’s acceptance not to be unreasonably withheld), and (5) reduction of any other benefits whose fees and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined disbursements shall be paid 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.

Parachute Payments. (a) Notwithstanding If any other provision payment or benefit Executive would receive in this Agreement, in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in of Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal either delivered in full, or delivered as to either (x) the largest portion of the Payments that such lesser extent which would result in no portion of the Payments such Payment being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount of the PaymentsTax, 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)Tax, results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payments Payment, notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments payments or benefits constituting a “parachute payment” is required so that the amount of the Payments equals the Reduced Amountnecessary, the Payments reduction shall be reduced occur in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Codepayments; (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 options that are exempt from Section 409A of the Codeawards; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of employee benefits. In the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of event the Code, as determined by the Company. If acceleration of vesting of Executive’s stock options or other equity awards award compensation is to be reduced pursuant to clauses (2) or (3) of the immediately preceding sentencereduced, such acceleration of vesting shall be cancelled in reverse order of the date of grant of Executive’s stock awards. Unless Company and the grantee otherwise agree in writing, any determination required under this Section shall be made in writing by first canceling the Company’s independent public accountants (the “Accountants”), 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, 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 Executive shall furnish to the Accountants such acceleration for information and documents as the vesting installment that will vest last and continuing 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 canceling as a first priority such acceleration for the vesting installment with the latest vestingthis Section.

Parachute Payments. (a) Notwithstanding If any other provision payment or benefit Executive would receive in this Agreement, in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of the foregoing amountsamount, 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payments Payment notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments Payment equals the Reduced Amount, the Payments reduction shall be reduced occur in the following order: order unless Executive elects in writing a different order (1) provided, however, that such election shall be subject to Company approval): reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Codepayments; (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 options that are exempt from Section 409A of the Codeawards; (4) reduction of any other payments and benefits otherwise payable to Executive employee benefits. In the event that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by the Company. If acceleration of vesting of Executive’s stock options or other equity awards award compensation is to be reduced pursuant to clauses (2) or (3) of the immediately preceding sentencereduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Executive’s stock awards unless Executive elects in writing a different order for cancellation. The Company for general audit purposes shall engage a nationally recognized public accounting firm (the “Accounting Firm”) to perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by first canceling such acceleration for accounting firm required to be made hereunder. The Accounting Firm engaged to make the vesting installment determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. If the Accounting Firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will vest last be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding, and continuing by canceling as a first priority such acceleration for conclusive upon the vesting installment with the latest vestingCompany and Executive.

Parachute Payments. i) If before the end of the Term the Company terminates your employment without Cause (aother than as a result of your death or disability) Notwithstanding any other provision or you resign for Good Reason, and such termination occurs within the 12 full calendar month period following the effective date of a Change in this AgreementControl, then, in the event that any payments payment or benefits Executive receives benefit paid or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with be paid to you by the Company or such person (in the aggregate, the “Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code or any similar or successor provision of 1986, as amended (the “Excise TaxCode”), then the Company shall pay to you an additional amount (the “Gross-Up Payment”) such that the net amount of the Payments retained by you shall be equal to either (x) the largest portion amount you would have retained if none of the such 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 were subject to the Excise Tax. If In particular, the Company will timely pay to you an amount equal to the Excise Tax on the Payments, any interest, penalties or additions to tax payable by you by reason of your filing income tax returns and making tax payments in a reduction manner consistent with an opinion of tax counsel selected by the Company and reasonably acceptable to you (“Tax Counsel”), and any federal, state and local income tax and Excise Tax upon the payments by the Company to you provided for by this Section 8(g). Notwithstanding the foregoing provisions of this Section 8(g), in the Payments is required so that event the amount of Payments subject to the Payments equals Excise Tax exceeds the Reduced Amount, the Payments shall be reduced in the following order: product (1“Parachute Payment Limit”) reduction of cash Payments otherwise payable to Executive that are exempt from 2.99 and your applicable “base amount” (as such term is defined for purposes of Section 409A 4999 of the Code; ) by less than ten percent (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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 (310%) of the immediately preceding sentenceSalary, such acceleration of vesting you shall be cancelled treated as having waived such rights with respect to Payments designated by first canceling you to the extent required such acceleration for that the vesting installment that will vest last and continuing by canceling as a first priority such acceleration for aggregate amount of Payments subject to the vesting installment with Excise Tax is less than the latest vestingParachute Payment Limit.

Parachute Payments. (a) Notwithstanding If there is a change in ownership or control of the Company that would cause any other provision in this Agreement, in the event any payments payment or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with distribution by the Company or such any other person or entity to the Executive or for the Executive’s benefit (in whether paid or payable or distributed or distributable pursuant to the aggregate, the terms of this Agreement or otherwise) (a “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (such excise tax, together with any interest or any similar or successor provision (penalties incurred by the Executive with respect to such excise tax, the “Excise Tax”), then the amount Executive will receive the greatest of the Payments shall be equal to either following, whichever gives the Executive the highest net after-tax amount (xafter taking into account federal, state, local and social security taxes): (a) the largest portion Payments or (b) one dollar less than the amount of the Payments that would result in no portion of subject the Payments being subject Executive to the Excise Tax (the “Reduced Safe Harbor 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 required necessary so that the amount Payments equal the Safe Harbor Amount and none of the Payments equals constitutes non-qualified deferred compensation (within the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction meaning of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cancellation ), then the reduction shall occur in the manner the Executive elects in writing prior to the date of accelerated vesting payment. If any Payment constitutes non-qualified deferred compensation or if the Executive fails to elect an order, then the Payments to be reduced will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of equity awards (other than stock options) that are exempt from when payment would have been made to the Executive, until the reduction is achieved. All determinations required to be made under this Section 409A 7.16, including whether and when the Safe Harbor Amount is required and the amount of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A reduction of the Code; Payments and the assumptions to be utilized in arriving at such determination, shall be made by a certified public accounting firm designated by the Company (4) reduction of any other payments the “Accounting Firm”). All fees and benefits otherwise payable to Executive that are exempt from Section 409A expenses of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined Accounting Firm shall be borne solely 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 Any determination by the immediately preceding sentence, such acceleration of vesting Accounting Firm shall be cancelled by first canceling such acceleration for binding upon Company and the vesting installment that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingExecutive.

Parachute Payments. (a) Notwithstanding any In the event that the severance and other provision benefits provided for in this AgreementAgreement to Employee (the "Benefit"), in the event determined without regard to any payments or benefits Executive receives or would become entitled to receive from the Companyadditional payment required under this section 4, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would (i) constitute a “"parachute payment” payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar interest or successor provision penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then Employee shall be entitled to receive from the Company an additional payment (the "Gross-Up Payment") in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the Payments shall be equal day prior to either (x) the largest portion effective date of the Payments that would result in no portion Change of Control shall perform the Payments being subject foregoing calculations. The Company shall bear all expenses with respect 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 determinations by such accounting firm required to be made)made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, results in Executive’s receipttogether with detailed supporting documentation, 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 Company and to Employee within fifteen (15) calendar days after the Payments date on which Employee's right to the Benefit is required so triggered (if requested at that time by the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1Company or by Employee) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner time as requested by the Company or by Employee. If the accounting firm determines that complies no Excise Tax is payable with Section 409A respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations 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 accounting firm made hereunder shall be cancelled by first canceling such acceleration for final, binding and conclusive upon the vesting installment that will vest last Company and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingEmployee.

Parachute Payments. (a) Notwithstanding any other provision in this AgreementAgreement or any other agreement or arrangement between the Company and you with respect to compensation or benefits (each an “Other Arrangement”), in the event that the provisions of Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended, or any payments or benefits Executive receives or successor provisions (the “Code”), would become entitled cause you to receive a greater after-tax benefit from the Company, Capped Benefit (as defined below) than from the amounts (including the monetary value of any person whose actions result in a Change in Control non-cash benefits) otherwise payable pursuant to this Agreement or any person affiliated with Other Arrangement (the Company or such person (in the aggregate“Specified Benefits”), the Capped Benefit shall be paid to you in lieu of the Specified Benefits. The “Payments”) would (i) constitute Capped Benefit” shall equal the Specified Benefits, reduced by the amount necessary to prevent any portion of the Specified Benefits from being a “parachute payment” within the meaning of as defined in Section 280G 280G(b)(2) of the Code. The Capped Benefit would therefore equal 2.99 multiplied by your applicable “base amount” as defined in Section 280G(b)(3) of the Code. For purposes of determining whether you would receive a greater after-tax benefit from the Capped Benefit than from the Specified Benefits, and (ii) but for this sentence, there shall be subject to the taken into account any excise tax that would be imposed by under Section 4999 of the Code 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 and 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 taxes required to be made), results paid by you in Executive’s receipt, on an after-tax basis, respect of the greatest amount receipt of such payments. The parties acknowledge that the application of Section 280G is uncertain in many respects and agree that the Company shall make all calculations and determinations under this section (including application and interpretation of the Payments notwithstanding that all or some portion Code and related regulatory, administrative and judicial authorities) in good faith, which calculations and determinations shall be conclusive absent manifest error. The Company shall provide you with a reasonable opportunity to review and comment on the Company’s calculations of the Payments may Capped Benefit and to request which of the Specified Benefits shall be subject to reduced. If, after payment of any amount under this Agreement or any Other Arrangement, it is determined that the Excise Tax. If a reduction in calculation of the Payments is required so that Capped Benefit was calculated incorrectly, the amount of the Payments equals the Reduced AmountCapped Benefit will be adjusted, the Payments Company shall be reduced pay to you any additional amount that should have been paid to you, and you shall repay to the Company any amount that should not have been paid to you, in each case with interest at the following order: (1discount rate applicable under Section 280G(d)(4) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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.

Parachute Payments. (a) Notwithstanding If any other provision in payment or benefit (including payments and benefits pursuant to this Agreement, ) that Executive would receive in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsTransaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount Company shall cause to be determined, before any amounts of the Payments shall be equal Transaction Payment are paid to either (x) the largest portion Executive, which of the Payments that following two alternative forms of payment 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 greater amount of the Payments Transaction Payment notwithstanding that all or some portion of the Payments Transaction Payment may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A payment in full of the Code; entire amount of the Transaction Payment (a “Full Payment”), or (2) cancellation payment of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A only a part of the Code; (3) cancellation of accelerated vesting of stock options Transaction Payment so that are exempt from Section 409A Executive receives the largest payment possible without the imposition of the Code; Excise Tax (4a “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 of any other in payments and and/or benefits otherwise payable shall occur in the manner that results in the greatest economic benefit to Executive that are exempt from Section 409A as determined in this paragraph (the “Reduction Method”). If more than one method of reduction will result in the same economic benefit, the portions of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by the Company. If acceleration of vesting of Executive’s stock options or other equity awards is to Transaction Payment shall be reduced pursuant to clauses pro rata (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“Pro Rata Reduction Method”).

Parachute Payments. (a) Notwithstanding If any other provision in this Agreement, in the event any payments payment or benefits Executive receives or benefit you would become entitled to receive from the Company, any person whose actions result in Company pursuant to a Change in Control Corporate Transaction or any person affiliated with the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment being subject to the Excise Tax (the “Reduced Amount”)Tax, or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of the foregoing amountsamount, 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s receipt, on an after-tax basis, your receipt of the greatest amount of the Payments economic benefit notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments Payment equals the Reduced Amount, reduction shall occur in a manner necessary to provide you with the Payments greatest economic benefit. If more than one manner of reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, the payments and benefits shall be reduced in pro rata. The independent registered public accounting firm engaged by the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A Company for general audit purposes as of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A day prior to the effective date of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from event described in Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 (3280G(b)(2)(A)(i) of the immediately preceding sentenceCode shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder, such acceleration and any good faith determinations of vesting the independent registered public accounting firm made hereunder shall be cancelled by first canceling such acceleration for final, binding and conclusive upon the vesting installment that will vest last Company and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingyou.

Parachute Payments. (a) Notwithstanding If any other provision in this Agreement, in the event any payments payment or benefits benefit Executive receives or would become entitled to receive from the Company, any person whose actions result Company or otherwise in connection with a Change in of Control or any person affiliated with the Company or such person other similar transaction (in the aggregate, the a “Payments280G Payment”) would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments any such 280G Payment (a "Payment") shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment (after reduction) being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of amount (i.e., the foregoing amountsamount 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments greater economic benefit notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments a Payment is required so that pursuant to the amount preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the Payments equals the Reduced Amountpreceding sentence, the Payments reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the following order: (1) reduction of cash Payments otherwise payable Payment being subject to Executive that are exempt from taxes pursuant to Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) Code that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits would not otherwise payable be subject to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable taxes pursuant to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, 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 of the Code as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are “deferred compensation” within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code. The determinations made pursuant to this Section 8, and the assumptions to be utilized in arriving at such determinations, shall be made by a nationally recognized accounting or consulting firm chosen by the Board or a committee thereof (the “280G Calculation Firm”) at the expense of the Company. If acceleration The 280G Calculation Firm shall take into account whether, and to what extent (if any), such Payments or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the 280G Change in Control, within the meaning of vesting Code section 280G(b)(4) and the regulations issued thereunder, as well as any other appropriate provisions of Executive’s stock options or other equity awards is to be reduced pursuant to clauses (2) or (3) Section 280G of the immediately preceding sentenceCode and the regulations thereunder 257488580 v2 that may cause such Payments to appropriately be characterized as other than “parachute payments.” The 280G Calculation Firm shall provide a written report of its determinations hereunder, such acceleration of vesting shall be cancelled by first canceling such acceleration for including detailed supporting calculations, both to the vesting installment that will vest last Executive and continuing by canceling as a first priority such acceleration for to the vesting installment with the latest vestingCompany.

Parachute Payments. (a) Notwithstanding If the Company determines that any other provision in amounts payable under this Agreement, either alone or together with other compensation, would be subject to the excise tax imposed on “excess parachute payments” under Section 4999 of the Code, the Company shall compute the amount that would be payable to Executive if the total amounts that are payable to Executive by the Company and are considered “parachute payments” for purposes of Code Section 280G (“Parachute Payments”) were limited to the maximum amount that may be paid to Executive under Code Sections 280G and 4999 without imposition of the excise tax (this amount is referred to as the “Capped Amount”). The Company will also compute the amount that would be payable under the Agreement without regard to the Code Sections 280G and 4999 limit (this amount is referred to as the “Uncapped Amount”). Notwithstanding anything in this Agreement to the contrary, if the Uncapped Amount is less than 110% of the Capped Amount, then the total benefits and other amounts that are considered Parachute Payments and are payable to Executive under this Agreement will be reduced to the Capped Amount. If the Capped Amount is to be paid, payments shall be reduced in the event following order: (i) any payments cash severance based on a multiple of Base Salary or Annual Bonus, (ii) any other cash amounts payable to Executive, (iii) any benefits valued as Parachute Payments, (iv) acceleration of vesting on any stock awards for which the exercise price exceeds the then fair market value and (v) acceleration of vesting of any equity not covered by section (iv) above, unless Executive elects another method of reduction of written notice to the Company prior to a Change in Control. If, after application of the preceding paragraph, any payments, distributions or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person otherwise, but determined without regard to any additional payment required under this Section 3.2, pursuant to the terms of this Agreement (in the aggregate, the “Payments”) ), would (i) constitute a “parachute payment” within the meaning of Section 280G of the CodeParachute Payments, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar interest or successor provision penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the amount of the Payments Executive shall be equal entitled to either (x) receive from the largest portion of the Payments that would result in no portion of the Payments being subject to the Excise Tax Company an additional payment (the “Reduced AmountGross-Up Payment”)) in an amount that shall fund the payment by Executive of any Excise Tax on the Payments as well as all income and employment taxes imposed on the Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment and any interest or penalties imposed with respect to income and employment taxes imposed on the Gross-Up Payment. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control, or a nationally recognized accounting firm of the Company’s choosing, shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (y15) calendar days after the full amount of date on which Executive’s right to the Payments is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect to the Payments, whichever it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payments. Any good faith determinations of the foregoing amountsaccounting firm made hereunder shall be final, after taking into account all applicable federal, state binding and local employment taxes, income taxes, conclusive upon the Company and Executive. Any Gross-Up Payment to which Executive becomes entitled under this Section 3.2 shall be made to Executive no later than the Excise Tax (all computed at calendar year next following the highest marginal rate applicable to individuals in the calendar year in which Executive remits the Payments are taxes to be made), results in Executive’s receipt, on an afterwhich such Gross-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 required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vestingUp Payment relates.

Parachute Payments. (ai) It is the objective of this Agreement to maximize Key Colleague’s Net After-Tax Benefit (as defined herein) if payments or benefits provided under this Agreement are subject to excise tax under Code Section 4999. Notwithstanding any other provision in provisions of this Agreement, in the event that any payments payment or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with benefit by the Company or otherwise to or for the benefit of Key Colleague, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such person payments and benefits, including the payments and benefits under Section 3(a) or 3(b) above, being hereinafter referred to as the “Total Payments”), would be subject (in the aggregate, the “Payments”whole or in part) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Code Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of payments and benefits shall thereafter be reduced in accordance with Section 3(g)(ii) below, to the Payments shall be equal to either (x) the largest portion of the Payments extent necessary so that would result in no portion of the Total 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 shall be subject to the Excise Tax. If a , but only if (A) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (B) the net amount of such Total Payments without such reduction in (but after subtracting the net amount of federal, state and local income taxes on such Total Payments is required so that and the amount of Excise Tax to which Key Colleague would be subject in respect of such unreduced Total Payments and after taking into account the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction phase out of cash Payments otherwise payable itemized deductions and personal exemptions attributable 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vestingunreduced Total Payments).

Parachute Payments. (a) Notwithstanding If any other provision in this Agreement, in the event any payments payment or benefits benefit Executive receives or would become entitled to receive from the Company, any person whose actions result Company or otherwise in connection with a Change in Control or any person affiliated with the Company or such person other similar transaction (in the aggregate, the a “Payments280G Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments any such 280G Payment (a “Payment”) shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment (after reduction) being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of amount (i.e., the foregoing amountsamount 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments greater economic benefit notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments a Payment is required so that pursuant to the amount preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the Payments equals the Reduced Amountpreceding sentence, the Payments reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the following order: (1) reduction of cash Payments otherwise payable Payment being subject to Executive that are exempt from taxes pursuant to Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) Code that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits would not otherwise payable be subject to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable taxes pursuant to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as determined by the Company. If acceleration case may be, shall be modified so as to avoid the imposition of vesting of Executive’s stock options or other equity awards is to be reduced taxes pursuant to clauses (2) or (3) Section 409A 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 Code as follows: (A) as a first priority such acceleration priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are “deferred compensation” within the vesting installment with meaning of Section 409A of the latest vestingCode shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code.

Parachute Payments. (a) Notwithstanding any other provision Anything in this AgreementAgreement to the contrary notwithstanding, in if any payment or benefit the event any payments or benefits Executive receives or Employee would become entitled to receive from the Company, any person whose actions result in a Change in Control Company or any person affiliated with an affiliate of the Company pursuant to this Agreement or such person otherwise (in the aggregate, the a “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion of the PaymentsPayment, up to and including the total Payment, whichever of the foregoing amountsamount, 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executivethe Employee’s receipt, on an after-tax basis, of the greatest greater amount of the Payments Payment notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments Payment equals the Reduced Amount, the Payments reduction shall be reduced occur in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Codepayments; (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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments employee benefits. The Company shall appoint a nationally recognized independent accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and benefits otherwise payable the Employee within fifteen (15) calendar days after the date on which the Employee’s right to Executive a Payment is triggered (if requested at that are exempt from Section 409A of time by the Code; and (5Company or the Employee) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner time as requested by the Company or the Employee. If the accounting firm determines that complies no Excise Tax is payable with Section 409A respect to a Payment, either before or after the application of the CodeReduced Amount, as determined by it shall furnish the CompanyCompany and the Employee with an opinion reasonably acceptable to the Employee that no Excise Tax will be imposed with respect to such Payment. 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 The Company shall be cancelled by first canceling such acceleration for entitled to rely upon the vesting installment that will vest last accounting firm’s determinations, which shall be final and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingbinding on all persons.

Parachute Payments. (a) Notwithstanding any other provision anything in this AgreementAgreement to the contrary, in the event any payments that the Company’s outside, independent accountants shall determine that the termination compensation payable to the Executive pursuant to Section 10.1 (the “Agreement Payments”) shall, as a result of a change in the ownership or benefits Executive receives effective control of the Company or would become entitled to receive from in the ownership of a substantial portion of the assets of the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would (i) constitute a “parachute payment” 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 (iisuch other payments together with the Agreement Payments shall be referred to as the “Total Payments”) but for this sentencewould more likely than not, in the opinion of the Company’s accountants, cause the Executive to be subject to the excise tax imposed by on excess parachute payments under Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then 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 Payments shall be equal to either (xCode) the largest portion of the Total Payments that would result in no portion of to one dollar less than three (3) times the Payments being subject Executive’s Base Amount to the Excise Tax (end that 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 Executive is not subject to the Excise Tax. If a an amount has been paid to the Executive which should not have been paid due to the required reduction in the Payments is required so that the amount of the Payments equals the Reduced Amountaggregate present value, the Payments Executive shall be reduced promptly return such amount to the Company (together with interest at the rate set forth in the following order: (1Section 1274(b)(2)(B) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cancellation ). For purposes of accelerated vesting of equity awards (other determining whether and the extent to which the Total Payments would more likely than stock options) that are exempt from Section 409A not cause the Executive to be subject to the Excise Tax, no portion of the Code; (3) cancellation Total Payments, the receipt of accelerated vesting of stock options that are exempt from Section 409A of which the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Codehas effectively waived in writing, 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 vestingtaken into account.

Parachute Payments. (a) Notwithstanding Any other provisions of this Agreement or of any other provision in this Agreementagreement between Employee and Employer to the contrary notwithstanding, in the event if any payments payment or benefits Executive receives or benefit Employee would become entitled to receive from the Company, any person whose actions result Employer or otherwise in connection with a Change in Control or any person affiliated with the Company or such person change of control of Employer (in the aggregate, the “Payments”"Payment") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Code, Code and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “"Excise Tax”"), then the Employer shall pay the Employee an additional payment (a "Gross-Up Payment"). The Gross-Up Payment shall equal an amount such that after payment by the Employee of the Payments shall be equal all taxes (and any interest or penalties imposed with respect to either such taxes), including, without limitation, any income taxes (xand any interest and penalties imposed with respect thereto) the largest portion of the Payments that would result in no portion of the Payments being subject to the and Excise Tax (imposed upon the “Reduced Amount”)Gross-Up Payment, 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, but excluding any income taxes, interest and the Excise Tax (all computed at the highest marginal rate applicable penalties imposed pursuant 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 required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with 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 9(j), if it is determined that the Employee would be entitled to a Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of an amount equal to 2.99 times the Employee's "base amount" within the meaning of Section 280G(b)(3) of the Code (the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to the Employee and the amounts payable in cash under Section 7 of this Agreement shall be reduced so that the 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 a Payment as of the date of a change of control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2), as determined by the CompanyAccounting Firm (as defined below). If acceleration 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 vesting 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 Executive’s stock options the Employer immediately prior to the change of control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Employer and the Employee within 15 business days of the receipt of notice from the Employee that there has been a Payment, or such earlier time as is requested by the Employer. Except as provided below, any determination by the Accounting Firm shall be binding upon the Employer and the Employee. If, as a result of a claim made by the Internal Revenue Service 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 and of 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 regard, (i) the Employer shall pay such fees and 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 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 Employee within fifteen business days of the receipt of the Accounting Firm's determination or the final resolution of any claim made by the 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 equity awards 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 be reduced pursuant to clauses (2) the Internal Revenue Service or (3) any other applicable taxing authority, for the benefit of the immediately preceding sentenceEmployee, all or any portion of any Gross-Up Payment, and the Employee hereby consents to 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 vestingwithholding.

Parachute Payments. (a) Notwithstanding any other provision Anything in this AgreementAgreement to the contrary notwithstanding, in the event if any payments payment or benefits Executive receives or benefit you would become entitled to receive from the Company, any person whose actions result in a Change in Control Company pursuant to this Agreement or any person affiliated with the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x1) the largest portion of the Payments Payment that would result in no portion of the Payments Payment being subject to the Excise Tax (the “Reduced Amount”), or (y2) the full amount Payment or a portion thereof after payment of the Paymentsapplicable Excise Tax, whichever of the foregoing amounts, 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s your 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 TaxPayment. If a reduction in the Payments payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments Payment equals the Reduced Amount, reduction shall occur in the Payments order of payments you elect in writing, provided, however, that such election shall be reduced in subject to Company approval if made on or after the following order: date on which the event that triggers the Payment occurs. The Company’s principal outside accounting firm will make all determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to the Company and you within fifteen (115) reduction of cash Payments otherwise payable calendar days after the date on which your right to Executive a Payment is triggered (if requested at that are exempt from Section 409A of time by you or the Code; (2Company) 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, time as determined requested by you or the Company. If acceleration of vesting of Executive’s stock options the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or other equity awards is to be reduced pursuant to clauses (2) or (3) after the application of the immediately preceding sentenceReduced Amount, it shall furnish the Company and you with an opinion reasonably acceptable to you that no Excise Tax will be imposed with respect to such acceleration of vesting Payment. The Company shall be cancelled by first canceling such acceleration for entitled to rely upon the vesting installment that will vest last accounting firm’s determinations, which shall be final and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingbinding on all persons.

Parachute Payments. (a) Notwithstanding If any other provision payment or benefit an Employee would receive in this Agreement, in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in of Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of the foregoing amountsamount, 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executivethe Employee’s receipt, on an after-tax basis, of the greatest greater amount of the Payments Payment notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments Payment equals the Reduced Amount, the Payments reduction shall be reduced occur in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Codepayments; (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 options that are exempt from Section 409A of the Codeawards; (4) reduction of any other payments and benefits otherwise payable to Executive employee benefits. In the event that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by the Company. If acceleration of vesting of Executive’s stock options or other equity awards award compensation is to be reduced pursuant to clauses (2) or (3) of the immediately preceding sentencereduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Employee’s stock awards. The accounting firm engaged by first canceling such acceleration the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the vesting installment individual, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Employee within fifteen (15) calendar days after the date on which the Employee’s right to a Payment is triggered (if requested at that time by the Company or the Employee) or such other time as requested by the Company or the Employee. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and the Employee with an opinion reasonably acceptable to Executive that no Excise Tax will vest last be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and continuing by canceling as a first priority such acceleration for conclusive upon the vesting installment with Company and the latest vestingEmployee.

Parachute Payments. If any payment or benefit to which Employee may be entitled in connection with a change in control (a) Notwithstanding any other provision in this Agreement, in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”, which shall include, without limitation, the vesting of an option or other non-cash benefit or property) would (i) constitute a “parachute payment” within the meaning of Section 280G of the CodeInternal Revenue Code of 1986, as amended and the rules and regulations thereunder and, (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the such Payments shall be equal to the Reduced Amount. The “Reduced Amount” shall be 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”)Tax, or (y) the full amount largest portion, up to and including the total, of the Payments, whichever of the foregoing amountsamount, 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executivethe Employee’s receipt, on an after-tax basis, of the greatest greater 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 payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments equals equal the Reduced Amount, reduction shall occur in the manner that results in the greatest economic benefit for Employee. Determination of whether Payments would result in the application of the Excise Tax, and the amount of any reduction that is necessary so that the Payments equal the Reduced Amount shall be reduced in made, at Employer’s expense, by the following order: independent accounting firm employed by Employer prior to the date on which Employee’s right to any Payments are triggered (1if requested at that time by Employee or Employer) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, time as determined reasonably requested by the Company. If acceleration of vesting of Executive’s stock options Employee 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 vestingEmployer.

Parachute Payments. (a) Notwithstanding any other provision anything contained in this AgreementAgreement to the contrary, in to the event any extent that payments and benefits provided under this Agreement or otherwise (including the acceleration of vesting of equity awards) to Executive (such payments or benefits are collectively referred to as the "Payments") would be 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 would become is then entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) that would (i) constitute a “"parachute payment” payments" within the meaning of Section 280G of the Code, and 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 (which may be, but for will not be required to be, the 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 sentenceSection 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 shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code 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 taxesCode, and the Excise Tax (all computed at Company shall pay such reduced amount to him. If the highest marginal rate applicable to individuals in the year in which the Payments are to be madeAccounting Firm determines that a reduction is required by this Section 9(d), results in Executive’s receipt, on an after-tax basis, and any Payment constitutes a "deferral of compensation" within the meaning of Section 409A 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 required so that the amount of the Payments equals the Reduced AmountCode, then the Payments shall be reduced in the following order: ; (1a) reduction of in the cash Payments severance payments described herein (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); (b) 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 are exempt from Section 409A of the Codeis, later payments shall be reduced before earlier payments); (2c) cancellation of accelerated 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 (other than stock optionsc) above; provided, however that are exempt from Section 409A of in the Code; (3) cancellation of accelerated vesting of stock options event that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 sentencecancelled, such acceleration of vesting shall be cancelled by first canceling in the reverse order of the date of grant of such acceleration for the vesting installment equity awards, that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingis, later equity awards shall be canceled before earlier equity awards.

Parachute Payments. (a) Notwithstanding any other provision Anything in this AgreementAgreement to the contrary notwithstanding, in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in that a Change in Control occurs and it shall be determined that any payment or any person affiliated with distribution by the Company or such person (in the aggregateCompany, the Bank or its Affiliates to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would constitute an “Payments”) would (i) constitute a “excess parachute payment” within the meaning of Section Code section 280G of the Code(each such payment, a “Parachute Payment”) and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code 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 the imposition on the Employee of an excise tax under Code section 4999, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be paid an amount in cash equal to the sum of the excise taxes payable by the Employee by reason of receiving Parachute Payments being subject plus the amount necessary to place the Excise Tax Employee in the same after-tax position (the “Reduced Amount”), or (y) the full amount of the Payments, whichever of the foregoing amounts, after taking into account any and all applicable federal, state and local employment taxesexcise, income taxes, and the Excise Tax (all computed or other taxes at the highest marginal rate possible applicable rates on such Parachute Payments (including, without limitation, any payments under this subparagraph 11.2(a)) as if no excise taxes had been imposed with respect to individuals Parachute Payments (the “Parachute Gross-up”). In no event shall a Parachute Gross-up be payable under this subparagraph 11.2 in the year absence of a Change in which Control. Any Parachute Gross-up otherwise required by this subparagraph 11.2(a) shall not be made later than the Payments are time of the corresponding payment or benefit hereunder giving rise to be madethe underlying Code section 4999 excise tax (to the extent such determination has been made prior to such time), results in Executive’s receipt, on an after-tax basis, even if the payment of the greatest amount of excise tax is not required under the Payments notwithstanding that all or some portion of the Payments may be subject to the Excise TaxCode until a later time. If a reduction in the Payments is Any Parachute Gross-up otherwise required so that the amount of the Payments equals the Reduced Amount, the Payments under this subparagraph 11.2(a) shall be reduced in made whether or not payments or benefits are payable under this Agreement and whether or not the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by the Company. If acceleration of vesting of ExecutiveEmployee’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 employment with the latest vestingBank shall have been terminated.

Parachute Payments. If the total payments and benefits to be paid to or for the benefit of the Executive under this Agreement (athe "Payment") Notwithstanding would cause any other provision portion of those payments and benefits to be "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 the Executive under this AgreementAgreement shall be reduced, in if applicable, by the event any payments or benefits Executive receives or Corporation to the Adjusted Amount. The " Adjusted Amount" shall be either (x) the Payment reduced to the largest portion of the Payment that would become entitled to receive from the Company, any person whose actions otherwise result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G no portion of the Code, and (ii) but for this sentence, be Payment being subject to the excise tax imposed by Code Section 4999 of the Code 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) an amount equal to the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of the foregoing amountsamount, 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 applicable to individuals in the year in which the Payments are to be maderate), results in the Executive’s 's receipt, on an after-tax basis, of the greatest greater amount of the Payments Payment notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments payments or benefits is required necessary so that the amount of the Payments Payment equals the Reduced Adjusted Amount, the Payments reduction shall be reduced occur in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A first by reducing or eliminating the portion of the Code; (2) cancellation Payment that is payable in cash, second by reducing or eliminating the portion of accelerated vesting of equity awards the Payment that is not payable in cash (other than stock optionsPayments as to which Treasury Regulations Section 1.280G-1 Q/A-24(c) (or any successor provision thereto) applies (“Q/A-24(c) Payments”)), and third by reducing or eliminating Q/A-24(c) Payments. In the event that are exempt from Section 409A of the Code; (3any Q/A-24(c) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis Payment or such other manner that complies with Section 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, such Q/A-24(c) Payment shall be reduced pursuant to clauses (2) or (3) cancelled in the reverse order of the date of grant of the awards. The independent public accounting firm serving as the Corporation's auditing firm immediately preceding sentenceprior to the effective date of the Change of Control (the "Accountants") shall make in writing in good faith, subject to the terms and conditions of this Section 16, all calculations and determinations under this Section, including the assumptions to be used in arriving at such acceleration calculations and determinations, whether any payments are to be reduced, and the manner and amount of vesting 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 and 4999. The Executive shall be cancelled furnish to the Accountants and the Corporation such information and documents as the Accountants or the Corporation may reasonably request to make the calculations and determinations under this Section. The Corporation shall bear all fees and costs the Accountants may reasonably charge or incur in connection with any calculations contemplated by first canceling such acceleration for this Section. The Accountants shall provide its determination, together with detailed supporting calculations regarding any relevant matter, both to the vesting installment that will vest last Corporation and continuing to the Executive by canceling as a first priority such acceleration for no later than ninety (90) days following the vesting installment with the latest vestingExecutive's Termination of Employment.

Parachute Payments. (a) Notwithstanding If any other provision in payment or benefit (including payments and benefits pursuant to this Agreement, ) that Executive would receive in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsTransaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount Company shall cause to be determined, before any amounts of the Payments shall be equal Transaction Payment are paid to either (x) the largest portion Executive, which of the Payments that following two alternative forms of payment 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 greater amount of the Payments Transaction Payment notwithstanding that all or some portion of the Payments Transaction Payment may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A payment in full of the Code; entire amount of the Transaction Payment (a “Full Payment”), or (2) cancellation payment of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A only a part of the Code; (3) cancellation of accelerated vesting of stock options Transaction Payment so that are exempt from Section 409A Executive receives the largest payment possible without the imposition of the Code; Excise Tax (4a “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 of any other in payments and and/or benefits otherwise payable shall occur in the manner that results in the greatest economic benefit to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 in this paragraph (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.the

Parachute Payments. (a) Notwithstanding any other provision in provisions of this Agreement, in the event that any payments payment or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with benefit made by the Company or otherwise to you or for your benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such person payments and benefits, including the payments and benefits under Section 12 hereof, being hereinafter referred to as the “Total Payments”), would be subject (in the aggregate, the “Payments”whole or in part) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Total Payments shall be equal reduced (in the order provided in this Section below) to either (x) the largest portion minimum extent necessary to avoid the imposition of the Payments that would result in no portion of the Payments being subject to the Excise Tax on the Total Payments, but only if (the “Reduced Amount”), or (ya) the full net amount of the such Total Payments, whichever as so reduced (and after subtracting the net amount of the foregoing amounts, after taking into account all applicable federal, state and local income and employment taxes, income taxes, taxes on such reduced Total Payments and after taking into account the Excise Tax (all computed at the highest marginal rate applicable phase out of itemized deductions and personal exemptions attributable to individuals in the year in which the Payments are to be madesuch reduced Total Payments), results in Executive’s receipt, on an after-tax basis, of is greater than or equal to (b) the greatest net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. If a reduction in the Payments is required so that and the amount of the Excise Tax to which you would be subject in respect of such unreduced Total Payments equals and after taking into account the Reduced Amount, the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (1i) reduction on a pro-rata basis of any cash Payments otherwise payable to Executive severance payments that are exempt from Section 409A of the Code; 409A, (2ii) cancellation of accelerated vesting of equity awards (other than stock options) reduction on a pro-rata basis any non-cash severance payments or benefits that are exempt from Section 409A 409A, (iii) reduction on a pro-rata basis of the Code; (3) cancellation of accelerated vesting of stock options any other payments or benefits that are exempt from Section 409A of the Code; 409A, and (4iv) reduction of any other payments and or benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A 409A; provided, in case of clauses (ii), (iii) and (iv), that reduction of any payments attributable to the acceleration of vesting of Company equity awards shall be first applied to Company equity awards that would otherwise vest last in time. All determinations regarding the application of this Section shall be made by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax selected by the Company (the “Independent Advisors”). For purposes of these determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Independent Advisors, (x) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (y) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as determined defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne by the Company. If acceleration In the event it is later determined that a greater reduction in the Total Payments should have been made to implement the objective and intent of vesting of Executive’s stock options or other equity awards is to be reduced pursuant to clauses (2) or (3) of this Section, the immediately preceding sentence, such acceleration of vesting excess amount shall be cancelled returned immediately by first canceling such acceleration for you to the vesting installment that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingCompany.

Parachute Payments. (a) Notwithstanding anything to the contrary herein or in any other provision in this AgreementBenefit Plan, in the event it shall be determined that any payments monetary amounts or benefits Executive receives due or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with payable by the Company to Executive (whether paid or such person (in the aggregatepayable, the “Payments”or due or distributed) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be are or will become subject to the any excise tax imposed by under Section 4999 of the Code or any similar or successor provision (the collectively “Excise TaxTaxes”), then the amount of the Payments amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be equal reduced to either (x) the largest portion of the Payments extent necessary so that would result in no portion of the Payments being such amounts or benefits shall be subject to the Excise Tax Taxes, but only if (the “Reduced Amount”), or (yi) the full net amount of such amounts and benefits, as so reduced (and after the Payments, whichever imposition of the foregoing amounts, after taking into account all applicable total amount of taxes under federal, state and local employment taxeslaw on such amounts and benefits), income taxesis greater than (ii) the excess of (A) the net amount of such amounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the amount of Excise Tax (all computed at the highest marginal rate applicable Taxes to individuals which Executive would be subject on such unreduced amounts and benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the year in which absence of such reduction, the Payments are Company and Executive shall make good faith efforts to be made), results in Executive’s receipt, on an after-tax basis, of seek to identify and pursue reasonable action to avoid or reduce the greatest amount of the Payments notwithstanding Excise Taxes; provided, however, that all or some portion of the Payments may this sentence shall not be subject construed to the Excise Tax. If a require Executive to accept any further reduction in the Payments amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 7(d) shall override and control any inconsistent provision in any applicable Benefit Plan. All determinations required to be made under this Section 7(d), including whether reduction is required so that required, the amount of such reduction and the Payments equals the Reduced Amountassumptions to be utilized in arriving at such determination, the Payments shall be reduced made in good faith by an independent accounting firm selected by the following order: Company in accordance with applicable law (1) reduction of cash Payments otherwise payable the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive that are exempt from Section 409A Executive. All fees and expenses 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined Accounting Firm shall be borne solely 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 Accounting Firm determines that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vesting.no excise tax

Parachute Payments. (a) Notwithstanding any other provision in this Agreement, in In the event that (i) Executive becomes entitled to any payments or benefits Executive receives hereunder or would become entitled to receive otherwise from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would (i) any Company Entity which constitute a “parachute payment” within the meaning of as defined in Internal Revenue Code Section 280G of (the Code, “Total Payments”) and (ii) but for this sentence, be Executive is subject to the an excise tax imposed by under Internal Revenue Code Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then then, if it would be economically advantageous for Executive, the amount of the Total Payments shall be equal to either reduced by an amount that results in the receipt by Executive on an after tax basis (x) including 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, Tax) of the greatest amount Total Payment, notwithstanding that some or all of the Payments notwithstanding that all or some portion of the Total Payments may be subject to the Excise Tax. If a Any such reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Total Payments shall be reduced in applied first against (A) the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A portion of the Code; (2) cancellation of accelerated vesting of Total Payments which are not payable in cash and are not attributable to equity awards (other than stock options) that are exempt from Section 409A portion of the CodeTotal Payments subject to clause (E) hereof); then (3B) cancellation the portion of accelerated the Total Payments which are payable in cash (other than that portion of the Total Payments subject to clause (E) hereof); then (C) the portion of the Total Payments which are not payable in cash and are attributable to equity awards (other than that portion of the Total Payments subject to clause (E) hereof) the vesting of stock options that are exempt from Section 409A which is based upon the achievement of performance goals; then (D) the portion of the CodeTotal Payments which are not payable in cash and are attributable to equity awards (other than that portion of the Total Payments subject to clause (E) hereof) the vesting of which is based only upon continued employment; then (4E) reduction the portion of any other the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation §1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case of clauses (A) through (D), in the order of latest scheduled payments to earliest scheduled payments and in the case of clause (E) in the order of highest value payments and benefits otherwise payable to Executive that are exempt from lowest value payments and benefits (determined in accordance with Internal Revenue Code Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vesting280G).

Parachute Payments. (a) Notwithstanding any other provision anything contained in this AgreementAgreement to the contrary, in the event any payments or benefits Executive receives or would become entitled to receive from the Company, based on the advice of its legal or tax counsel, shall compute whether there would be any person whose actions result in a Change in Control or any person affiliated with “excess parachute payments” payable to Executive, within the Company or such person (in meaning of Section 280G of the aggregateCode, taking into account the “Payments”) would (i) constitute a “total ‘‘parachute paymentpayments,” within the meaning of Section 280G of the Code, payable to Executive by the Company under this Agreement and (ii) but for this sentenceany other plan, agreement or otherwise. If there would be subject any excess parachute payments, the Company, based on the advice of its legal or tax counsel, shall compute the net after-tax proceeds related to such parachute payments, taking into account the excise tax imposed by Section 4999 of the Code or any similar or successor provision Code, as if (i) such parachute payments were reduced, but not below zero, such that the total parachute payments payable to Executive would not exceed three (3) times the “Excise Tax”), then the amount base amount” as defined in Section 280G of the Payments shall be equal to either Code, less One Dollar (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”$1.00), or (yii) the full amount of such parachute payments were not reduced. If reducing the Payments, whichever amount 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 such parachute payments otherwise payable would result in the year in which the Payments are to be made), results in Executive’s receipt, on an a greater after-tax basisamount to Executive, of such reduced amount shall be paid to Executive and the greatest remainder shall be forfeited. If not reducing such parachute payments otherwise payable would result in a greater after-tax amount of the Payments notwithstanding that all or some portion of the Payments may to Executive, then such parachute payments shall not be subject reduced. If such parachute payments are reduced pursuant to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amountforegoing, the Payments shall they will be reduced in the following order: (1) reduction of first, by reducing any cash Payments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (severance payments, then by reducing any fringe or other than stock options) that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of severance benefits, and finally by reducing any other payments and or benefits otherwise payable with respect to, or measured by, the Company’s common stock (including without limitation by eliminating accelerated vesting, in each case starting with the installment or tranche last eligible to Executive that are exempt from Section 409A become vested absent the occurrence of the Code; and Change in Control (5as defined in the Company’s 2014 Equity Incentive Plan)). Notwithstanding the foregoing, to the extent the parties agree that any of the foregoing amounts are not parachute payments, such amounts shall not be reduced. To the extent the parties cannot agree as to whether any of the payments are in fact parachute payments, the parties will designate, by mutual agreement, an unrelated third-party with tax expertise to make the determination. Notwithstanding any provision of this Section 3.2(d) to the contrary, no amount shall be subject to reduction pursuant to this Section 3.2(d) to the extent the reduction would result in a violation of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vestingapplicable law.

Parachute Payments. (a) Notwithstanding any other provision in of this AgreementAgreement to the contrary, in to the event extent that any payments payment or benefits Executive receives distribution of any type to or would become entitled to receive from for the Employee by the Company (or by any affiliate of the Company, any person whose actions result in a Change in Control or any person affiliated with entity who acquires ownership or effective control of the Company or such person ownership of a substantial portion of the Company’s assets (in the aggregate, the “Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and the regulations thereunder)), and or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (ii) but for this sentencethe “Total Payments”), is or will be subject to the excise tax imposed by under Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Total Payments shall be equal reduced (but not below zero) if and to either (x) the largest portion of extent that a reduction in the Total 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 receiptEmployee retaining a larger amount, on an after-tax basisbasis (taking into account federal, of the greatest amount of the Payments notwithstanding that all or some portion of the Payments may be subject to state and local income taxes and the Excise Tax. If a reduction in ), than if the Payments is required so that Employee received the entire amount of such Total Payments. The determination of whether the Payments equals the Reduced Amount, the Total Payments shall be reduced in and the following order: amount of such reduction shall be determined by an accounting firm selected by the Employee and the Company, shall be paid for by the Company, and shall be final and binding upon the Employee and the Company. The accounting firm’s decision as to which of the Total Payments are to be reduced, if any, shall be made (1A) reduction of cash only from the Total Payments otherwise payable to Executive that are exempt from the accounting firm determines reasonably may be characterized as “parachute payments” under Section 409A 280G of the Code; (2B) cancellation of accelerated vesting of equity awards (other than stock options) only from the Total Payments that are exempt from Section 409A of the Code; required to be made in cash, (3C) cancellation of accelerated vesting of stock options only with respect to any amounts that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise not payable pursuant to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable a “nonqualified deferred compensation plan” subject to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by until those payments have been reduced to zero, and (D) in reverse chronological order, to the Companyextent that any of the Total Payments subject to reduction are made over time (e.g., in installments). If acceleration In no event, however, shall any of vesting the Total Payments be reduced if and to the extent such reduction would cause a violation of Executive’s stock options Section 409A of the Code 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 vestingapplicable law.

Parachute Payments. (a) Notwithstanding If any other provision payment or benefit Executive would receive in this Agreement, in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of the foregoing amountsamount, 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payments Payment notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments Payment equals the Reduced Amount, the Payments reduction shall be reduced occur in the following order: order unless Executive elects in writing a different order (1) provided, however, that such election shall be subject to Company approval): reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Codepayments; (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 options that are exempt from Section 409A of the Codeawards; (4) reduction of any other payments and benefits otherwise payable to Executive employee benefits. In the event that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by the Company. If acceleration of vesting of Executive’s stock options or other equity awards award compensation is to be reduced pursuant to clauses (2) or (3) of the immediately preceding sentencereduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Executive’s stock awards unless Executive elects in writing a different order for cancellation. The Company for general audit purposes shall engage a nationally recognized public accounting firm (the “Accounting Firm”) to perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by first canceling such acceleration for Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the vesting installment determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. If the Accounting Firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will vest last be imposed with respect to such Payment. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding and continuing by canceling as a first priority such acceleration for conclusive upon the vesting installment with the latest vestingCompany and Executive.

Parachute Payments. (a) Notwithstanding If any other provision in payment or benefit (including payments and benefits pursuant to this Agreement, ) that Executive would receive in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsTransaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (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 Payments shall be equal to either (x) the largest Transaction Payment notwithstanding that all or some portion of the Payments that would result in no portion of the Payments being Transaction Payment may be subject to the Excise Tax Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Reduced AmountFull Payment”), or (y2) the full amount payment of only a part of the Payments, whichever Transaction Payment so that Executive receives the largest payment possible without the imposition of the foregoing amountsExcise Tax (a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, after taking the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate applicable to individuals in the year in which the Payments are to be made)rate, results in Executive’s receipt, on an after-tax basis, net of the greatest amount maximum reduction in federal income taxes which could be obtained from a deduction of the Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Taxsuch state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the Payments is required so manner that results in the amount greatest economic benefit to Executive as determined in this paragraph (the “Reduction Method”). If more than one method of reduction will result in the same economic benefit, the portions of the Payments equals the Reduced Amount, the Payments Transaction Payment shall be reduced in pro rata (the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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“Pro Rata Reduction Method”).

Parachute Payments. If any payment or benefit (a) Notwithstanding any other provision in including payments and benefits pursuant to this Agreement, ) that Executive would receive in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsTransaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount Company shall cause to be determined, before any amounts of the Payments shall be equal Transaction Payment are paid to either (x) the largest portion Executive, which of the Payments that following two alternative forms of payment 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 greater amount of the Payments Transaction Payment notwithstanding that all or some portion of the Payments Transaction Payment may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (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 cash Payments otherwise payable such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment; and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to Executive that are exempt from Section 409A 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 section shall be made in writing by the Company’s independent public accountants (the “Accountants”), 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, 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; (2) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A . Executive and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this section as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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.

Parachute Payments. (a) Notwithstanding any other provision in of this AgreementSection 3, in if it is determined that part or all of the event any payments compensation or benefits Executive receives or would become entitled to receive from be paid to the Company, any person whose actions result Employee under this Agreement in a Change in Control or any person affiliated connection with the Company Employee's Severance Termination , or such person (in the aggregateunder any other plan, the “Payments”) would (i) constitute arrangement or agreement, constitutes a “"parachute payment” within the meaning of Section 280G " under section 280G(b)(2) of the CodeInternal Revenue Code of 1986, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”)as amended, then the amount constituting a parachute payment that would otherwise be payable to or for the benefit of the Payments Employee first shall be equal to either deferred (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”greatest extent permitted by such applicable law), or and to the extent not so deferred, shall be reduced (yif 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 full amount of independent public accountants that audited the Payments, whichever of Company's financial statements for 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 fiscal year preceding the year in which the Payments are to Employee's employment was terminated, whose determination shall be made), results final and binding in Executive’s receipt, on an after-tax basis, of all cases. Unless the greatest amount of the Payments notwithstanding Employee is given notice that all a payment (or some portion of the Payments may be subject payments) will constitute a parachute payment prior to the Excise Tax. If a reduction in the Payments is required so that the amount earlier of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction receipt of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Code; such payments or (2) cancellation of accelerated vesting of equity awards the tenth business day following his or her Severance Termination, no payment (other than stock optionsor payments) that are exempt from Section 409A shall be deemed to constitute a parachute payment. If the determination made pursuant to this subsection would result in a deferral (to the 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 the Code; (3) cancellation of accelerated vesting of stock options payments that are exempt from Section 409A of would otherwise be paid to the Code; (4) reduction Employee, the Employee may elect, in his sole discretion, which and how much of any other particular entitlement shall be so deferred or reduced (giving effect to any payments and benefits otherwise payable that may have been received prior to Executive that are exempt from Section 409A such termination) and shall advise the Company in writing of his election within 10 days of the Code; determination of the deferral or reduction in payments. If no such election is made by the Employee within such 10-day period, the Company shall determine which and (5) reduction how much of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 entitlement shall be cancelled by first canceling deferred (to the greatest extent permitted under such acceleration applicable law) and, to the extent not so deferred, reduced (to the extent required under such applicable law) and shall notify the Employee promptly of such determination. The Company shall (or shall cause the applicable SPAR Affiliate to) pay to, or distribute to or for the vesting installment that will vest last benefit of, the Employee such amounts as are then due to the Employee under this Agreement and continuing by canceling as a first priority such acceleration shall timely pay to, or distribute to or for the vesting installment with benefit of, the latest vestingEmployee in the future such amounts as become due to the Employee under this Agreement.

Parachute Payments. (a) Notwithstanding any other provision Anything in this AgreementAgreement to the contrary notwithstanding, in if any payment or benefit the event any payments or benefits Executive receives or Employee would become entitled to receive from the Company, any person whose actions result in a Change in Control Company pursuant to this Agreement or any person affiliated with the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x1) the largest portion of the Payments Payment that would result in no portion of the Payments Payment being subject to the Excise Tax (the “Reduced Amount”), or (y2) the full amount Payment or a portion thereof after payment of the Paymentsapplicable Excise Tax, whichever of the foregoing amounts, 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executivethe Employee’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 TaxPayment. If a reduction in the Payments payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments Payment equals the Reduced Amount, reduction shall occur in the Payments order of payments the Employee elects in writing, provided, however, that such election shall be reduced in subject to Company approval if made on or after the following order: date on which the event that triggers the Payment occurs. The Company’s principal outside accounting firm will make all determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to the Company and the Employee within fifteen (115) reduction of cash Payments otherwise payable calendar days after the date on which the Employee’s right to Executive a Payment is triggered (if requested at that are exempt from Section 409A of time by the Code; (2Company or Employee) 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, time as determined requested by the CompanyCompany or the Employee. 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 accounting firm determines that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vesting.no Excise

Parachute Payments. If any payment or benefit (a) Notwithstanding any other provision in including payments and benefits pursuant to this Agreement, ) that Executive would receive in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in of Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsTransaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (ii) but for this sentenceParagraph, would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount Company shall cause to be determined, before any amounts of the Payments shall be equal Transaction Payment are paid to either (x) the largest portion Executive, which of the Payments that following two alternative forms of payment 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 greater amount of the Payments Transaction Payment notwithstanding that all or some portion of the Payments Transaction Payment may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (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 cash Payments otherwise payable such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to Executive that are exempt from Section 409A 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 (the “Accountants”), whose determination shall be conclusive and binding upon Executive 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 Sections 280G and 4999 of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A . Executive and the Company 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 as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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.

Parachute Payments. (a) Notwithstanding any other provision Anything in this AgreementAgreement to the contrary notwithstanding, in the event if any payments payment or benefits Executive receives or benefit you would become entitled to receive from the Company, any person whose actions result in Company pursuant to this Agreement or otherwise (a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion of the PaymentsPayment, up to and including the total Payment, whichever of the foregoing amountsamount, 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s your receipt, on an after-tax basis, of the greatest greater amount of the Payments Payment notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments payments or benefits constituting “parachute payments” is required necessary so that the amount of the Payments Payment equals the Reduced Amount, the Payments reduction shall be reduced occur in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Codepayments; (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 options that are exempt from Section 409A of the Codeawards; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by the Companyemployee benefits. If acceleration of vesting of Executive’s stock options or other equity awards award compensation is to be reduced pursuant to clauses (2) or (3) of the immediately preceding sentencereduced, such acceleration of vesting shall be cancelled by first canceling such acceleration in the reverse order of the date of grant of the your stock awards. The Company shall appoint a nationally recognized independent accounting firm to make the determinations required hereunder, which accounting firm shall not then be serving as accountant or auditor for the vesting installment individual, entity or group that effected the Change of Control. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and you within fifteen (15) calendar days after the date on which your right to a Payment is triggered (if requested at that time by the Company or you) or such other time as requested by the Company or you. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and you with an opinion reasonably acceptable to you that no Excise Tax will vest last be imposed with respect to such Payment. The Company shall be entitled to rely upon the accounting firm’s determinations, which shall be final and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingbinding on all persons.

Parachute Payments. (a) Notwithstanding any other provision in of this AgreementSection, in if it is determined that part or all of the event any payments compensation or benefits Executive receives or would become entitled to receive from be paid to the Company, any person whose actions result Employee under this Agreement in a Change in Control or any person affiliated connection with the Company Employee's Severance Termination, or such person (in the aggregateunder any other plan, the “Payments”) would (i) constitute arrangement or agreement, constitutes a “"parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”" under IRC §280G(b)(2), then the amount constituting a parachute payment that would otherwise be payable to or for the benefit of the Payments Employee shall be equal reduced (if required under such applicable law), but only to either the extent necessary, so that such amount would not constitute a parachute payment. In the event a reduction is required, cash payments shall be reduced first, and then compensation and benefits not payable in cash shall be reduced, in each case in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date of the reduction and in each case after giving effect to any payments and benefits that may have been received prior to termination. Any determination that a payment constitutes a parachute payment shall be made as promptly as practicable following the Employee's termination of employment (xbut not later than the date payment is required under subsection (b) of this Section) by the Tax Adviser (at the expense of the Company), whose determination shall be final and binding in all cases. Unless the Employee is given notice that a payment (or payments) will constitute a parachute payment prior to the earlier of (1) receipt of such payments or (2) the largest portion of tenth (10th) business day following his or her Severance Termination, no payment (or payments) shall be deemed to constitute a parachute payment. If the Payments that determination made pursuant to this subsection would result in no portion a reduction, the Tax Adviser also shall determine which and how much of the Payments being subject any particular entitlement shall be so reduced (to the Excise Tax (the “Reduced Amount”extent required under such applicable law), or (y) the full amount of the Payments, whichever of the foregoing amounts, in each case 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 giving effect 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 required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable that may have been received prior to Executive that are exempt from Section 409A such termination, and shall advise the Employee and Company in writing within ten (10) business days of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A determination 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 vestingreduction in payments.

Parachute Payments. (a) Notwithstanding any other provision in this Agreement, in In the event that the aggregate amount of any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would (i) constitute a Payments that could be considered “parachute paymentpayments” within the meaning of (as defined in Section 280G of the Code) (such payments, and (iithe “Parachute Payments”) but for this sentenceexceeds the greatest amount of Parachute Payments that may be paid, be subject provided or delivered to the excise tax imposed by Section 4999 of Executive without giving rise to any liability for the Code or any similar or successor provision (the “Excise Tax”), then the aggregate amount of Parachute Payments to which the Payments Executive is entitled shall be reduced to an amount equal to either the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (x) taking into account the largest Excise Tax payable in respect of such Parachute Payments). The Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that would result are payable in no cash and then by reducing or eliminating the non-cash portion of the Payments being Parachute Payments, in each case, in reverse order beginning with payments or benefits which are to be paid the furthest in the future. This Section 5 shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any Payment. All determinations to be made under this Section 5 shall be made, at the Company’s expense, by a nationally recognized certified public accounting firm selected by the Company (other than any such firm that serves as the Company’s auditor or otherwise has a material recurring business relationship with the Company), and written copies thereof shall be promptly delivered to the Executive. For the avoidance of doubt, this Section 5 shall not be applicable to the extent that the Executive is not subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount by virtue 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 required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vestingresidence.

Parachute Payments. (a) Notwithstanding any other provision in this Agreement, in In the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (in the aggregate, the “Payments”) would that (i) any severance payment, insurance benefits, accelerated vesting, pro-rated bonus or other benefit payable to Consultant shall constitute a “parachute payment” within the meaning of Code Section 280G of the Code, (“Parachute Payment”) and (ii) but for this sentence, be subject to the excise tax imposed by Code Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), and (ii) if the payments to Consultant were reduced to the minimum extent necessary so that such payments did not constitute Parachute Payments, the net benefits retained by Consultant after the deduction of any federal, state or local income taxes would be greater than the net benefits retained by Consultant if there was no such reduction after the deduction of Excise Tax and any federal, state or local income taxes, then such payments shall be so reduced. Such reduction shall be accomplished in any manner deemed appropriate by Flora Growth after consultation with Consultant. For purposes of making the foregoing determination: (1) Parachute Payments provided under arrangements with Consultant other than this Agreement, if any, shall be taken into account in determining the total amount of Parachute Payments received by Consultant so that the amount of the Parachute Payments that are attributable to provisions of this Agreement is maximized; and (2) Consultant shall be equal deemed 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 pay federal, state and local employment taxes, income taxes, and the Excise Tax (all computed taxes at the highest marginal rate applicable to individuals in the of taxation for Consultant’s taxable year in which the Parachute Payments are includable in Consultant’s income for purposes of federal, state and local income taxation. The determination of whether the Excise Tax is payable, and the amount of any reduction necessary to be made)make the Excise Tax not payable, results as well as whether such a reduction would result in Executive’s receipt, on an greater after-tax basisbenefits to Consultant, shall be made in writing in good faith by a nationally-recognized independent certified public accounting firm approved by Flora Growth and Consultant, such approval not to be unreasonably withheld (the “Accounting Firm”). For purposes of making the calculations required by this Section 11(a), to the extent not otherwise specified herein, reasonable assumptions and approximations may be made with respect to applicable taxes and reasonable, good faith interpretations of the greatest amount Code may be relied upon. Flora Growth and Consultant shall furnish such information and documents as may be reasonably requested in connection with the performance of the Payments notwithstanding that calculations under this Section 11(a). Flora Growth shall bear all or some portion costs incurred in connection with the performance of the Payments may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from calculations contemplated by this 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 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 vesting11(a).

Parachute Payments. (a) Notwithstanding any other provision in this Agreementanything to the contrary herein, in if the event any payments or benefits Executive receives or Company enters into an agreement the consummation of which would become entitled to receive from the Company, any person whose actions result in a Change in Control, an independent registered public accounting firm retained by the Company prior to the occurrence of such Change in Control (the “Accounting Firm”) shall determine whether all or any person affiliated with portion of the compensatory payments that the Participant receives from the Company or such person (including any compensation received in respect of the aggregate, the RSUs) will constitute “Payments”) would (i) constitute a “excess parachute payment” payments" within the meaning of Section 280G of the Code, and (ii) but for this sentence, Code such that the Participant would be subject to the excise tax imposed by Section 4999 of the Code or any other similar state excise tax or successor provision any interest or penalty is incurred by the Participant with respect to such excise tax (the “Excise Tax”), then . If the amount of the Payments shall Participant would be equal to either (x) the largest portion of the Payments that would result in no portion of the Payments being subject to an Excise Tax, the Excise Tax (Accounting Firm shall also determine whether the “Reduced Amount”)Participant would receive a greater net after tax benefit, or (y) the full amount of the Payments, whichever of the foregoing amounts, after taking into account all otherwise applicable federal, state and local income, employment taxesand excise taxes that would otherwise be imposed on or with respect to such compensatory payments, 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 required so that if the amount of the Payments equals the Reduced Amount, the Payments shall such compensatory payments were to be reduced to three times the Participant’s “base amount”, as defined in the following order: (1Section 280G(b)(3) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, less one dollar (the “Safe Harbor Limit”). If the Participant would receive a greater net after-tax benefit if the compensatory payments were reduced to the Safe Harbor Limit, then the number of RSUs (or, if applicable, Restricted Shares) that could become vested in connection with such Change in Control shall be reduced (but not below zero) as and to the extent the Accounting Firm determines to be necessary so that the compensatory payments shall not exceed the Safe Harbor Limit. If, as a result of the vesting of any portion of the RSUs prior to the date of the Change in Control, there is not a sufficient number of unvested RSUs (or, if applicable Restricted Shares) to reduce or forfeit to result in the aggregate compensatory payments be less than or equal to the Safe Harbor Limit, the Participant agrees to forego receipt of other compensation having a value (as determined by the Company. If acceleration Accounting Firm) equal to the additional number of vesting of Executive’s stock options whole or other equity awards is partial RSUs that would have had to be have been reduced pursuant or forfeited to clauses (2) or (3) of reduce the immediately preceding sentence, such acceleration of vesting shall be cancelled by first canceling such acceleration for compensatory payments to the vesting installment that will vest last and continuing by canceling as a first priority such acceleration for the vesting installment with the latest vestingSafe Harbor Limit.

Parachute Payments. If any payment or benefit (a) Notwithstanding any other provision in including payments and benefits pursuant to this Agreement, ) Executive would receive in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsPayment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentenceparagraph, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following two alternative forms of payment shall be paid to Executive: (A) payment in full of the entire amount of the Payments shall be equal to either Payment (x) the largest portion of the Payments that would result in no portion of the Payments being subject to the Excise Tax (the a “Reduced AmountFull Payment”), or (yB) the full amount payment of only a part of the Payments, whichever Payment so that Executive receives the largest payment possible without the imposition 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 a “Reduced Payment”). A Full Payment shall be made in the year in which event that the Payments are to be made), results in Executive’s receipt, amount received by Executive on an a net after-tax basisbasis is greater than what would be received by Executive on a net after-tax basis if the Reduced Payment were made, of the greatest amount of the Payments notwithstanding that all or some portion of the Payments may otherwise a Reduced Payment shall be subject to the Excise Taxmade. If a Reduced Payment is made, (i) 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 (ii) reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments payments and/or benefits shall be reduced occur in the following order: (1A) reduction of cash Payments otherwise payable to Executive that are exempt from Section 409A of the Codepayments; (2B) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A of the Code; (3C) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Codeoptions; and (4D) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable paid to Executive on a pro-rata basis or such other manner Executive. In the event that complies with Section 409A of the Code, as determined by the Company. If acceleration of vesting of compensation from Executive’s stock options or other equity awards is to be reduced pursuant to clauses (2) or (3) of the immediately preceding sentencereduced, such acceleration of vesting shall be cancelled canceled in the reverse order of the date of grant. The independent registered public accounting firm engaged by first canceling the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall make all determinations required to be made under this Section. The Company shall bear all expenses with respect to the determinations by such acceleration for independent registered public accounting firm required to be made hereunder. Any good faith determinations of the vesting installment that will vest last accounting firm made hereunder shall be final, binding and continuing by canceling as a first priority such acceleration for conclusive upon the vesting installment with the latest vestingCompany and Executive.

Parachute Payments. (a) Notwithstanding 1. If any other provision in this Agreement, in the event any payments payment or benefits benefit Executive receives or would become entitled to receive from the Company, any person whose actions result Corporation or otherwise in connection with a Change in of Control or any person affiliated with the Company or such person other similar transaction (in the aggregate, the a “Payments280G Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount of the Payments any such 280G Payment (a “Payment”) shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payments Payment that would result in no portion of the Payments Payment (after reduction) being subject to the Excise Tax (the “Reduced Amount”), or (y) the full amount largest portion, up to and including the total, of the PaymentsPayment, whichever of amount (i.e., the foregoing amountsamount 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 applicable to individuals in the year in which the Payments are to be maderate), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments greater economic benefit notwithstanding that all or some portion of the Payments Payment may be subject to the Excise Tax. If a reduction in the Payments a Payment is required so that pursuant to the amount preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the Payments equals the Reduced Amountpreceding sentence, the Payments reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the following order: (1) reduction of cash Payments otherwise payable Payment being subject to Executive that are exempt from taxes pursuant to Section 409A of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) Code that are exempt from Section 409A of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits would not otherwise payable be subject to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable taxes pursuant to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as determined by the Company. If acceleration case may be, shall be modified so as to avoid the imposition of vesting of Executive’s stock options or other equity awards is to be reduced taxes pursuant to clauses (2) or (3) Section 409A 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 Code as follows: (A) as a first priority such acceleration priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are “deferred compensation” within the vesting installment with meaning of Section 409A of the latest vestingCode shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code.

Parachute Payments. (a) Notwithstanding any other provision in of this AgreementAgreement to the contrary, in if any of the event any payments or benefits Executive receives provided or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with be provided by the Company to you pursuant to the terms of this Agreement or such person otherwise (in the aggregate, the “Covered Payments”) would may constitute parachute payments (i“Parachute Payments”) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) would, but for this sentenceSection 6, be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or successor provision local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then prior to making the amount Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to you of the Covered Payments shall be equal to either (x) the largest portion after payment of the Payments that would result in no portion of the Payments being subject to the Excise Tax to (the “Reduced Amount”), or (yii) the full amount of Net Benefit to you if 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 Covered Payments are limited 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 extent necessary to avoid being subject to the Excise Tax. If a reduction in Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is required so that subject to the amount Excise Tax. “Net Benefit” shall mean the present value of the Covered Payments equals the Reduced Amountnet of all federal, the Payments state, local, foreign income, employment and excise taxes. Any such reduction shall be reduced made in the following order: (1) reduction of cash Payments 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 options that are exempt from Section 409A of the Code; (4) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies accordance with Section 409A of the Code, Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as determined by the Company. If acceleration of vesting of Executive’s stock options or other equity awards is follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be reduced pursuant to clauses (2) or (3) of the immediately preceding sentence, such acceleration of vesting made on a later payment date 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 vestingreduced before payments to be made on an earlier payment date.

Parachute Payments. If any payment or benefit (a) Notwithstanding any other provision in including payments and benefits pursuant to this Agreement, ) that Executive would receive in the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in connection with a Change in of Control or any person affiliated with from the Company or such person otherwise (in the aggregate, the “PaymentsTransaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (ii) but for this sentenceParagraph, would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then the amount Company shall cause to be determined, before any amounts of the Payments shall be equal Transaction Payment are paid to either (x) the largest portion Executive, which of the Payments that following two alternative forms of payment 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 greater amount of the Payments Transaction Payment notwithstanding that all or some portion of the Payments Transaction Payment may be subject to the Excise Tax. If a reduction in the Payments is required so that the amount of the Payments equals the Reduced Amount, the Payments shall be reduced in the following order: (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 cash Payments otherwise payable such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to Executive that are exempt from Section 409A 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 (the “Accountants”), whose determination shall be conclusive and binding upon Executive 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 Sections 280G and 4999 of the Code; (2) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A . Executive and the Company 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 as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A . If deemed necessary by the Company to avoid any potential imposition of the Code; (4) reduction of any other payments adverse tax results provided for by Sections 280G and benefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A 4999 of the Code, then as determined a further condition to payment of any portion of a Transaction Payment, the Company may require Executive to submit the Transaction Payment and any other compensatory payment or benefit from any source that the Company reasonably determines may constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) for approval by the Company. If acceleration ’s stockholders prior to the consummation of vesting the Change of Executive’s stock options or other equity awards is to be reduced pursuant to clauses (2) or (3Control in the manner required by the terms of Section 280G(b)(5)(B) of the immediately preceding sentenceCode, such acceleration so that no payments will be deemed to constitute a “parachute payment” subject to the excise taxes under Sections 280G and 4999 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 vestingCode.

Parachute Payments. (a) Notwithstanding any other provision in 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, in and any other payments and benefits provided or to be provided to the event any payments or benefits Executive receives or would become entitled to receive from the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (any of its Subsidiaries or other Affiliates or any successors thereto constitute "parachute payments" as defined in the aggregate, the “Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code, and ") (iior any successor provision thereto) but for this sentence, ("Parachute Payments") that would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “"Excise Tax”"), then then, except as otherwise provided in the amount of the next sentence, such Parachute Payments shall be equal reduced to either (x) the largest portion of the Payments extent necessary so 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 thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 7(a), then no such reduction shall be made; provided, however, that in such case the provisions of Sections 7(b)(i) and 7(b)(ii) shall not be operative. The determination of the Independent Tax Counsel under this subsection (a) shall be final and binding on all parties hereto. The determination of which payments or benefits to reduce in order to avoid the Excise Tax shall be determined in the sole discretion of the Executive; provided, however, that unless the Executive gives written notice to the Company specifying the order to effectuate the limitations described above within ten (10) days of the Independent Tax Counsel’s determination to make such reduction, the Company shall first reduce those payments or benefits that will cause a dollar-for-dollar reduction in total Parachute Payments, and then by reducing other Parachute Payments, to the Payments is required so that the amount of the Payments equals the Reduced Amountextent possible, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive reverse order beginning with payments or benefits that are exempt to be paid the farthest in time 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 date the Code; (3) cancellation of accelerated vesting of stock options that are exempt from Section 409A of reduction is to be made. Any notice given by the Code; (4) reduction Executive pursuant to the preceding sentence, unless prohibited by law, shall take precedence over the provisions of any other payments plan, arrangement or agreement governing the Executive's rights and entitlement to any benefits otherwise payable to Executive that are exempt from or compensation. For purposes of this Section 409A of the Code; and (5) reduction of any other benefits and payments otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code7(a), 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."