Common use of Section 280G Clause in Contracts

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. Notwithstanding If the Executive becomes entitled to any other provisions amount in the nature of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided compensation payable by the Company that is contingent on a change in ownership, effective control, or its affiliates to Employee or for Employeesubstantial ownership of a substantial portion of the Company’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” assets within the meaning of Section 280G of the Internal Revenue Code (“Covered Payments”) and wouldconstitute “Parachute Payments” within the meaning within the meaning of Section 280G of the Internal Revenue Code of 1986, but for this Section 3.3(c) be as amended (the “Code”), and that is subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following a calculation shall apply: be made comparing (i) If the Covered Payments, reduced by Net Benefit (as defined below) to the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) after payment of the Code less one dollar (the “Threshold Amount”), are greater than or equal Excise Tax to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (1ii) the Covered Payments, but greater than (2) above will the Covered Payments be reduced by to the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess is subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum net of all Covered Payments shall not exceed the Threshold Amountfederal, state, local, foreign income, employment and excise taxes. In such eventthe event reduction is required, the Covered Payments shall be reduced by the Company in the following order: (Ai) cash severance payments hereunder to the extent not subject to Section 409A409A of the Code in the reverse order of payment; (Bii) cash payments any other portion of the Covered Payments that are not subject to Section 409A409A of the Code in the reverse order of payment (other than any acceleration of vesting of equity awards); (Ciii) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is Covered Payments that are not subject to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which Section 409A of the alternative provisions Code that arise from the accelerated vesting of equity awards, and; (iv) Covered Payments that are subject to Section 3.3(c)(ii) shall apply 409A of the Code in a manner consistent with Section 409A of the Code. All determinations pursuant to Employee this Section 5.4 shall be made by a nationally recognized accounting firm tax accountants selected by the Company and reasonably acceptable to Executive (the “Accounting FirmAccountants”), which whose determinations shall provide detailed supporting calculations both to be binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at Executive absent manifest error. The Executive shall provide the Accountants with such earlier time information and documents as is the Accountants may reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals request in order for the calendar year in which the determination is Accountants to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employeemake their determinations.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s 's benefit pursuant to the terms of this Agreement or otherwise (“"Covered Payments”") constitute “"parachute payments” " within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “"Excise Tax”"), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “'s "base amount” " within the meaning of Section 280(G) of the Code less one dollar (the “"Threshold Amount”"), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s '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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. Notwithstanding any other provisions of anything to the contrary in this Agreement, this Section 6 shall apply in the event of (i) a “change in the ownership or any other plan, arrangement or agreement to the contrary, if any effective control” of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to (ii) a “change in the terms ownership of this Agreement or otherwise (“Covered Payments”) constitute “parachute paymentsa substantial portion of the assets” of the Company, each within the meaning of Section 280G of the Code (collectively, an “Excise Tax Event”). If an Excise Tax Event is consummated, and wouldas a result any payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but for this not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and its affiliates will be one dollar ($1.00) less than three times Executive’s “base amount” (as defined in Section 3.3(c280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law Code, or any interest or penalties with respect to such taxes excise tax (collectivelysuch excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), then or (b) paid in full, whichever produces the following shall apply: better net after-tax position to Executive (i) If the Covered Payments, reduced by the sum of (1) the taking into account any applicable Excise Tax and (2) the total any other applicable taxes). The reduction of the Federalpayments and benefits hereunder, stateif applicable, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced made in the following order: (A1) cash by reducing the amounts of any payments or benefits that would not subject to constitute deferred compensation under Section 409A; (B) cash , to the extent necessary to decrease the payments subject to Section 409Athe Excise Tax, as agreed by the Company and Executive; (C2) equity-based next, by reducing, payments or benefits to be paid in cash hereunder and accelerationthat constitute deferred compensation under Section 409A in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time); and (D3) finally, by reducing any non-cash forms of benefits. To the extent any payment is or in-kind benefit to be made over time provided hereunder and that constitute deferred compensation under Section 409A in a similar order to that described in clause (e.g., in installments, etc.2), then the payments shall be reduced in reverse chronological order. The determination as to which whether any such reduction in the amount of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a nationally recognized accounting firm selected by reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (the or its affiliates) used in determining if a “Accounting Firm”)parachute payment” exists, which exceeds one dollar ($1.00) less than three times Executive’s base amount, then Executive shall provide detailed supporting calculations both immediately repay such excess to the Company and Employee within 15 business days of upon notification that an overpayment has been made. Nothing in this Section 6 shall require the date of termination, if applicableCompany to be responsible for, or at such earlier time as is reasonably requested by the Company have any liability or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall applyobligation with respect to, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’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. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExcise Tax liabilities.

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement arrangement, or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” payments within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) and would, but for this Section 3.3(c) 9.9, be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total or not be deductible under Section 280G of the FederalCode, state, and local income and employment taxes payable by Employee on then such Covered Payments shall be reduced to the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal is subject to the Threshold AmountExcise Tax, Employee shall be entitled to the full benefits payable under this Agreement; and but only if (ii) If the Threshold Amount is less than (1i) the net amount of such Covered Payments, but greater than as so reduced (2) and after subtracting the Covered Payments reduced by the sum net amount of (x) the Excise Tax and (y) the total of the Federalfederal, state, state and local income and employment taxes on such reduced Covered Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Covered Payments), is greater than or equal to (ii) the net amount of such Covered Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Covered Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Covered Payments which are in excess and after taking into account the phase out of the Threshold Amount, then the itemized deductions and personal exemptions attributable to such unreduced Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold AmountPayments). In such event, the The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, the following order: (A) cash payments not reduction shall be made in a manner consistent with the requirements of Section 409A, to the extent applicable, and where two or more economically equivalent amounts are subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To reduction but payable at different times, such amounts payable at the extent any payment is to be made over later time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employeefirst but not below zero.

Section 280G. Notwithstanding In the event that it shall be determined that any other provisions of this Agreement, payment or any other plan, arrangement or agreement distribution to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s the benefit pursuant to the terms of Executive under this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and under any other Company plan, contract or agreement would, but for the effect of this Section 3.3(c) 7.16, be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then then, at the following shall apply: election of Executive, in the event that the after-tax value of all Payments (ias defined below) If to Executive (such after-tax value to reflect the Covered deduction of the Excise Tax and all income or other taxes on such Payments) would, reduced by in the sum aggregate, be less than the after-tax value to Executive of the Safe Harbor Amount (as defined below), (1) the Excise Tax cash portions of the Payments payable to Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the total reduction of the Federalcash portions of the Payments, statepayable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and local income and employment taxes payable by Employee on (3) if the amount reduction of all cash portions of the Covered Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in excess the aggregate, equals the Safe Harbor Amount. As used herein, (x) “Payment” shall mean any payment or distribution in the nature of three compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise, (y) “Safe Harbor Amount” shall mean 2.99 times EmployeeExecutive’s “base amount,” within the meaning of Section 280(G280G(b)(3) of the Code, and (z) “Parachute Value” of a Payment shall mean the present value as of the date of the Change in 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) of the Code less one dollar (the “Threshold Amount”), are greater than or equal for purposes of determining whether and to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) what extent the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall will apply to Employee such Payment. All calculations under this section shall be made by a nationally recognized accounting firm selected reasonably by the Company (and the “Accounting Firm”), which shall provide detailed supporting calculations both to Company’s outside auditor at the Company Company’s expense and Employee within 15 business days of at the date of termination, if applicable, or at such earlier time as is times reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments (“parachute payments” Parachute Payments”) within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 5.9 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following Covered Payments shall apply: be either (i) If reduced to the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess of three times Employee’s “base is subject to the Excise Tax (that amount” within the meaning of Section 280(G) of the Code less one dollar (, the “Threshold Reduced Amount”), are greater than ) or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If payable in full if the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total Executive’s receipt on an after-tax basis of the Federalfull amount of payments and benefits (after taking into account the applicable federal, state, local and local income foreign income, employment and employment excise taxes (including the Excise Tax)) would result in the Executive receiving an amount greater than the Reduced Amount on the amount of the Covered Payments which are an after-tax basis. Any reduction in excess of the Threshold Amount, then the Covered Payments shall be made in a manner that maximizes the Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced (on a pro rata basis but not below zero. (b) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to All calculations and determinations under this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee 5.9 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel”), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive for all purposes. For purposes of determining which making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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 taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and Employeethe Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments (“parachute payments” Parachute Payments”) within the meaning of Section 280G of the Code and would, but for this Section 3.3(c8.12(c) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) after payment of the Code less one dollar (the “Threshold Amount”), are greater than or equal Excise Tax to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (1ii) the Covered Payments, but greater than (2) above will the Covered Payments be reduced by to the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess is subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value of the Threshold Amount, then the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. Any such reduction shall be reduced (but not below zero) to made in accordance with Section 409A of the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, Code and the Covered Payments shall be reduced in a manner that maximizes the following order: (A) cash payments not Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where two economically equivalent amounts are subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g.reduction but payable at different times, in installments, etc.), then the payments such amounts shall be reduced in reverse chronological orderon a pro rata basis but not below zero. The Any determination as to which of the alternative provisions of required under this Section 3.3(c)(ii) shall apply to Employee 8.12(c), including whether any payments or benefits are parachute payments, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which in its sole discretion. The Executive shall provide detailed supporting calculations both to the Company with such information and Employee within 15 business days of the date of termination, if applicable, or at such earlier time documents as is reasonably requested by the Company or Employeemay reasonably request in order to make a determination under this Section 8.12(c). For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee The Company’s determination shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, final and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence binding 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. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Section 280G. Notwithstanding any other provisions of (a) Anything in this Agreement, or any other plan, arrangement or agreement Award Agreement to the contrarycontrary notwithstanding, if in the event that any of the payments compensation, payment or benefits provided or to be provided distribution by the Company or its affiliates to Employee or for Employee’s the benefit of Awardee (the “Payments”), whether paid or payable or distributed or distributable pursuant to the terms of this Award Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and wouldotherwise, but for this Section 3.3(c) would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectivelyCode, the “Excise Tax”), then the following provisions shall apply: (i) i. If the Covered Payments, reduced by the sum of (1A) the Excise Tax and (2B) the total of the Federalfederal, state, and local income and employment taxes payable by Employee Awardee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee Awardee shall be entitled to the full benefits payable under this Award Agreement; and. (ii) . If the Threshold Amount is less than (1x) the Covered Payments, but greater than (2y) the Covered Payments reduced by the sum of (xA) the Excise Tax and (yB) the total of the Federalfederal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments benefits payable under this Award Agreement shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A1) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equityequity awards with performance-based payments and accelerationvesting; and (D2) nonequity awards with time-cash forms of benefitsbased vesting. To the extent any payment is to be made over time (e.g., in installments, etc.)time, then the payments shall be reduced in reverse chronological order. The determination as to which . (b) For the purposes of this Section 8, “Threshold Amount” shall mean three times Awardee’s “base amount” within the meaning of Section 280G(b)(3) of the alternative provisions of Code and the regulations promulgated thereunder less one dollar ($1.00); and “Excise Tax” shall mean the excise tax imposed by Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days 4999 of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be madeCode, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of any interest or penalties incurred by Awardee with respect to such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeexcise tax.

Section 280G. Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event that any other provisions of this Agreementcompensation, payment, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided distribution by the Company or any of its affiliates to Employee or for Employee’s the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Covered Payments”) constitute parachute payments (“parachute payments” Parachute Payments”) within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and would, but for this Section 3.3(c) 5.4, be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) after payment of the Code less one dollar (the “Threshold Amount”), are greater than or equal Excise Tax to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (1ii) the Covered Payments, but greater than (2) above will the Covered Payments be reduced by to the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess is subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum net of all Covered Payments shall not exceed the Threshold Amountfederal, state, local, foreign income, employment and excise taxes. In such eventthe event reduction is required, the Covered Payments shall be reduced by the Company in the following order: (Ai) cash severance payments hereunder to the extent not subject to Section 409A409A of the Code in the reverse order of payment; (Bii) cash payments any other portion of the Covered Payments that are not subject to Section 409A409A of the Code in the reverse order of payment (other than any acceleration of vesting of equity awards); (Ciii) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is Covered Payments that are not subject to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which Section 409A of the alternative provisions Code that arise from the accelerated vesting of equity awards, and; (iv) Covered Payments that are subject to Section 3.3(c)(ii) shall apply 409A of the Code in a manner consistent with Section 409A of the Code. All determinations pursuant to Employee this Section 5.4 shall be made by a nationally recognized accounting firm tax accountants selected by the Company and reasonably acceptable to Executive (the “Accounting FirmAccountants”), which whose determinations shall provide detailed supporting calculations both to be binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at Executive absent manifest error. The Executive shall provide the Accountants with such earlier time information and documents as is the Accountants may reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals request in order for the calendar year in which the determination is Accountants to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employeemake their determinations.

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement arrangement, or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” payments within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) and would, but for this Section 3.3(c) 9.9, be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total or not be deductible under Section 280G of the FederalCode, state, and local income and employment taxes payable by Employee on then such Covered Payments shall be reduced to the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal is subject to the Threshold AmountExcise Tax, Employee shall be entitled to the full benefits payable under this Agreement; and but only if (ii) If the Threshold Amount is less than (1i) the net amount of such Covered Payments, but greater than as so reduced (2) and after subtracting the Covered Payments reduced by the sum net amount of (x) the Excise Tax and (y) the total of the Federalfederal, state, state and local income and employment taxes on such reduced Covered Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Covered Payments Payments), is greater than or equal to (ii) the net amount of such Covered Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Covered Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Covered Payments which are in excess and after taking into account the phase out of the Threshold Amount, then the itemized deductions and personal exemptions attributable to such unreduced Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold AmountPayments). In such event, the The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, the following order: (A) cash payments not reduction shall be made in a manner consistent with the requirements of Section 409A, to the extent applicable, and where two or more economically equivalent amounts are subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To reduction but payable at different times, such amounts payable at the extent any payment is to be made over later time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employeefirst but not below zero.

Section 280G. Notwithstanding any other provisions provision of this Agreement, the Severance Plan or any other plan, arrangement arrangement, or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise (the “Covered Payments”) constitute “parachute payments” payments within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 9.11, be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local or foreign law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), or not be deductible under Section 280G of the Code, then such Covered Payments shall be reduced to the following shall apply: minimum extent necessary so that no portion of the Covered Payments is subject to the Excise Tax, but only if (i) If the net amount of such Covered Payments, as so reduced by (and after subtracting the sum net amount of (1) the Excise Tax and (2) the total of the Federalforeign, statefederal, state and local income and employment and other taxes payable by Employee on the amount of the such reduced Covered Payments which are in excess and after taking into account any interest or penalties on such taxes and the phase out of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”itemized deductions and personal exemptions attributable to such reduced Covered Payments), are is greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the net amount of such Covered Payments reduced by without such reduction (but after subtracting the sum net amount of (x) the Excise Tax and (y) the total of the Federalforeign, statefederal, state and local income and employment and other taxes on such Covered Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Covered Payments which are in excess and after taking into account any interest or penalties on such taxes and the phase out of the Threshold Amount, then the itemized deductions and personal exemptions attributable to such unreduced Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold AmountPayments). In such event, the The Covered Payments shall be reduced in a manner that is intended to maximize Executive’s economic position. In applying this principle, the following order: (A) cash payments not reduction shall be made in a manner consistent with the requirements of Section 409A, to the extent applicable, and where two or more economically equivalent amounts are subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To reduction but payable at different times, such amounts payable at the extent any payment is to be made over later time (e.g., in installments, etc.), then the payments shall be reduced first but not below zero. Unless the Company and Executive otherwise agree in reverse chronological order. The writing, any determination as to which of the alternative provisions of required under this Section 3.3(c)(ii) shall apply to Employee 9.11 shall be made by a nationally recognized accounting firm selected an independent tax advisor (not otherwise engaged by the Company within the prior three (3) years) designated by the Company in good faith (the “Accounting FirmIndependent Tax Advisor”), which whose determination shall provide detailed supporting calculations both to be conclusive and binding upon Executive and the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeefor all purposes. For purposes of determining which making the calculations required under this Section 9.11, the Independent Tax Advisor 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 alternative provisions of Section 3.3(c)(ii) Code; provided that the Independent Tax Advisor shall apply, Employee shall be deemed to pay Federal income assume that Executive pays all taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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 taxesrate. Any determination by the Accounting Firm shall be binding upon the The Company and EmployeeExecutive shall furnish to the Independent Tax Advisor such information and documents as the Independent Tax Advisor may reasonably request in order to make a determination under this Section 9.11. The Company shall bear all costs that the Independent Tax Advisor may reasonably incur in connection with any calculations contemplated by this Section 9.11.

Section 280G. (i) Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the payments or benefits provided or Code) to be provided by the Company or its affiliates to Employee or for Employee’s the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Covered PaymentsPAYMENTS”) ), would constitute an “excess parachute paymentspayment” within the meaning of Section 280G of the Code Code, the Company shall reduce (but not below zero) the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below), if reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no reduction was made. The Payments shall be reduced as described in the preceding sentence only if (A) the net amount of the Payments, as so reduced (and wouldafter subtracting the net amount of federal, state and local income and payroll taxes on the reduced Payments), is greater than or equal to (B) the net amount of the Payments without such reduction (but for after subtracting the net amount of federal, state and local income and payroll taxes on the Payments and the amount of Excise Tax (as defined below) to which Executive would be subject with respect to the unreduced Payments). Only amounts payable under this Section 3.3(c) Agreement shall be reduced pursuant to this subsection (i). The “REDUCED AMOUNT” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment under this Agreement to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. The term “EXCISE TAX” means the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or Code, together with any interest or penalties imposed with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeeexcise tax. For purposes of determining which the calculations under this SECTION 3.2(d), the severance payments to be made under this Agreement shall be allocated as consideration for the noncompetition covenant under SECTION 2.3 to the maximum extent allowable under Section 280G of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at Code and the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employeeregulations thereunder.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c1(j) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee Executive on the amount of the Covered Payments which are in excess of three times EmployeeExecutive’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee Executive shall be entitled to the full benefits payable under this Agreement; and. (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii1(j) shall apply to Employee Executive shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee Executive within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii1(j) shall apply, Employee Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’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. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Section 280G. Notwithstanding (a) If there is a change of ownership or effective control or change in the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G of the Code) (a “280G CIC”) and any other provisions of payment or benefit (including payments and benefits pursuant to this Agreement, or any other plan, arrangement or agreement to ) that the contrary, if any of the payments or benefits provided or to be provided by Executive would receive from the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered PaymentsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code and would, (ii) but for this Section 3.3(c) sentence, be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Transaction Payment are paid to the Executive, which of the following shall apply: two alternative forms of payment would result in the Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (iA) If payment in full of the Covered Paymentsentire amount of the Transaction Payment (a “Full Payment”), reduced by or (B) payment of only a part of the sum Transaction Payment so that the Executive receives the largest payment possible without the imposition of (1) the Excise Tax (a “Reduced Payment”, and (2) the total Executive shall be entitled to payment of whichever amount that shall result in a greater after-tax amount for the FederalExecutive. For purposes of determining whether to make a Full Payment or a Reduced Payment, statethe Company shall cause to be taken into account all applicable federal, state and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) and the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes computed at the highest applicable marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of terminationrate, net of the maximum reduction in Federal federal income taxes which could be obtained from a deduction of such state and local taxes). Any If a Reduced Payment is made, the reduction in payments and/or benefits will occur in the following order: (1) first, reduction of cash payments, in reverse order of scheduled payment date (or if necessary, to zero), (2) then, reduction of non-cash and non-equity benefits provided to the Executive, on a pro rata basis (or if necessary, to zero) and (3) then, cancellation of the acceleration of vesting of equity award compensation in the reverse order of the date of grant of the Executive’s equity awards. (b) Unless the Executive and the Company otherwise agree in writing, any determination required under this section shall be made in writing by the Accounting Firm Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making such determination, the Accountants may make reasonable assumptions and Employeeapproximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s 's benefit pursuant to the terms of this Agreement or otherwise (“"Covered Payments”") constitute “"parachute payments” " within the meaning of Section 280G of Internal Revenue Code (the Code "Code") and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “"Excise Tax”"), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federalfederal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “'s "base amount” " within the meaning of Section 280(G) of the Code less one dollar (the “"Threshold Amount”"), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s 's residence on the date of termination, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. Notwithstanding any other provisions of anything to the contrary in this Agreement, in the event that any compensation, payment or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided distribution by the Company or its and all affiliates to Employee or for Employee’s the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within otherwise, including but not limited to the meaning of Section 280G acceleration of the Code and exercisability and/or vesting of any equity awards (the “Severance Amounts”), would, but for this Section 3.3(c5(i), constitute an “excess parachute payment” as defined in Section 280G of the Code, the following provisions shall apply: (A) be subject if the Severance Amounts, reduced by the sum of (I) the Excise Tax (as defined below) and (II) the total of the federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Amounts which are in excess of the Threshold Amount (as defined below), are greater than or equal to the excise tax imposed Threshold Amount, Executive shall be entitled to the full benefits payable under Section 4999 of this Agreement, and (ii) if the Code Threshold Amount is less than (or any successor provision theretoA) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes the Severance Amounts, but greater than (collectively, B) the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, Severance Amounts reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federalfederal, state, and local income and employment taxes on the amount of the Covered Payments Severance Amounts which are in excess of the Threshold Amount, then the Covered Payments benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments maximum Severance Amounts shall not exceed the Threshold Amount. In such event, For the Covered Payments shall be reduced in the following order: (A) cash payments not subject to purposes of this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.5(i), then “Threshold Amount” shall mean three (3) times Executive’s “base amount” within the payments meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00), and “Excise Tax” shall be reduced in reverse chronological ordermean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with respect to such excise tax. The determination as to which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply to Employee Executive shall be made by a nationally recognized accounting firm selected by the Company or one of its affiliates (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply, Employee Executive shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’s residence on the date of terminationSeparation Date, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive, absent fraud or manifest error. In addition, notwithstanding anything herein to the contrary, in the event any payments are to be reduced, the reduction shall take place in a manner that produces the greatest economic advantage to Executive (and if reduction of two or more payments produce the same economic advantage they shall be reduced proportionally) but taking into account, as applicable, compliance with Section 409A. In no event shall the Company be liable or responsible for any Excise Tax imposed on Executive; provided, however, that this Section 5(i) shall not be construed to limit the remedies available to Executive in the event that Executive becomes subject to any Excise Tax, in a material amount, as a result of any fraud or error by the Accounting Firm.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code (the “Code”) and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federalfederal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. Notwithstanding (i) In the event that any other provisions payment received or to be received by the Executive in connection with a Change in Control of the Company or the termination of the Executive’s employment (whether payable pursuant to the terms of this Agreement, Agreement or any other plan, arrangement or agreement to with the contraryCompany, if any person whose actions result in a change in control of the payments or benefits provided or to be provided by the Company or its affiliates to Employee any person affiliated with the Company or for Employee’s benefit pursuant to such person (together with the terms of this Agreement or otherwise (Severance Payment, the “Covered Total Payments”, and each a “Payment”)) constitute would be treated as “parachute payments” within the meaning of under Section 280G of the Code and would, but for this Section 3.3(c) section, be subject to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto) or any similar tax imposed by corresponding provisions of state or local law tax laws, or any interest or penalties are incurred by the Executive with respect to such taxes excise tax (collectivelysuch excise tax, together with any such interest and penalties, is hereinafter collectively referred to as (the “Excise Tax”)), then the following prior to making any Total Payments, a calculation shall apply: be made comparing (i) If the Covered PaymentsNet Benefit (as defined below) to the Executive of the Total Payments after payment of the Excise Tax, to (ii) the Net Benefit to the Executive if the Total Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Total Payments be reduced by to the sum minimum extent necessary to ensure that no portion of (1) the Total Payments is subject to the Excise Tax and (2) that amount, the total “Reduced Amount”). “Net Benefit” shall mean the present value of the FederalTotal Payments net of all federal, state, local, foreign income, employment and local income and employment taxes payable by Employee on the amount excise taxes. The reduction of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits amounts payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federalif applicable, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected reducing taxable payments before non-taxable payments, and payments nearest in time before payments later in time, unless an alternative method of reduction is elected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both Executive to the Company and Employee within 15 business days extent consistent with Section 409A of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeCode. For purposes of determining which of reducing the alternative provisions of Section 3.3(c)(iiTotal Payments to the Reduced Amount, only amounts payable under this Agreement (and no other Payments) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employeereduced.

Section 280G. (a) Notwithstanding any other provisions of contrary provision in this Agreement, or if Executive is a “disqualified individual” (as defined in Section 280G of the Code), and the amounts that would otherwise be paid to Executive under this Agreement together with any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or that Executive has a right to receive from the Company and affiliated entities required to be provided by aggregated in accordance with Q/A-10 and Q/A-46 of Treas. Reg. § 1.280G-l (collectively, the Company or its affiliates to Employee or for Employee“Payments”) would constitute a “parachute payment” (as defined in Section 280G of the Code), the Payments shall be either (i) reduced (but not below zero) so that the aggregate present value of such Payments shall be $1.00 less than three times Executive’s benefit pursuant “base amount” (as defined in Section 280G of the Code) (the “Safe Harbor Amount”) and so that no portion of such Payments shall be subject to the terms excise tax imposed by Section 4999 (the “Excise Tax”); or (ii) paid in full, whichever produces the better net after-tax result for Executive (taking into account any applicable Excise Tax and any applicable federal, state and local income and employment taxes). (b) The reduction of Payments, if applicable, shall be made by reducing, first, severance amounts to be paid in cash hereunder in the order in which such payments would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and second, by reducing any other cash payments that would be payable to Executive outside of this Agreement or otherwise which are valued in full for purposes of Code Section 280G in a similar order (“Covered Payments”) constitute “parachute payments” within the meaning last to first), and third, by reducing any equity acceleration hereunder of awards which are valued in full for purposes of Section 280G of the Code and would, but for this Section 3.3(c) be subject in a similar order (last to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”first), then and finally, by reducing any other Payment in a similar order (last to first). Notwithstanding the following shall apply: (i) If the Covered Paymentsforegoing, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee all such reductions shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are made in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) a manner that complies with Section 409A to the extent necessary so that determined appropriate by the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: Board. (Ac) cash payments not subject to All calculations and determinations under this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee 11 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel”), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive for all purposes. For purposes of determining which making the calculations and determinations required by this Section 11, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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 taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and Employeethe Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 11. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) i. If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) . If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s 's benefit pursuant to the terms of this Agreement or otherwise (“"Covered Payments”") constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code (the "Code") and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “"Excise Tax”"), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federalfederal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “'s "base amount” " within the meaning of Section 280(G) of the Code less one dollar (the “"Threshold Amount”"), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s 's residence on the date of termination, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. Notwithstanding any other provisions of Anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrarycontrary notwithstanding, if in the event that any of the payments compensation, payment or benefits provided or to be provided distribution by the Company or its and all affiliates to Employee or for Employee’s the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within otherwise, including but not limited to the meaning of Section 280G acceleration of the Code and exercisability and/or vesting of any equity awards (the “Severance Amounts”), would, but for this Section 3.3(c5(i), constitute an “excess parachute payment” as defined in Section 280G of the Code, the following provisions shall apply: (A) be subject if the Severance Amounts, reduced by the sum of (I) the Excise Tax (as defined below) and (II) the total of the federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Amounts which are in excess of the Threshold Amount (as defined below), are greater than or equal to the excise tax imposed Threshold Amount, Executive shall be entitled to the full benefits payable under Section 4999 of this Agreement, and (ii) if the Code Threshold Amount is less than (or any successor provision theretoA) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes the Severance Amounts, but greater than (collectively, B) the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, Severance Amounts reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federalfederal, state, and local income and employment taxes on the amount of the Covered Payments Severance Amounts which are in excess of the Threshold Amount, then the Covered Payments benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments maximum Severance Amounts shall not exceed the Threshold Amount. In such event, For the Covered Payments shall be reduced in the following order: (A) cash payments not subject to purposes of this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.5(i), then “Threshold Amount” shall mean three (3) times Executive’s “base amount” within the payments meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00), and “Excise Tax” shall be reduced in reverse chronological ordermean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with respect to such excise tax. The determination as to which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply to Employee Executive shall be made by a nationally recognized accounting firm selected by the Company or one of its affiliates (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply, Employee Executive shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’s residence on the date of terminationSeparation Date, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive, absent fraud or manifest error. In addition, notwithstanding anything herein to the contrary, in the event any payments are to be reduced, the reduction shall take place in a manner that produces the greatest economic advantage to Executive (and if reduction of two or more payments produce the same economic advantage they shall be reduced proportionally) but taking into account, as applicable, compliance with Section 409A. In no event shall the Company be liable or responsible for any Excise Tax imposed on Executive; provided, however, that this Section 5(i) shall not be construed to limit the remedies available to Executive in the event that Executive becomes subject to any Excise Tax, in a material amount, as a result of any fraud or error by the Accounting Firm.

Section 280G. Notwithstanding any other provisions of this AgreementOffer Letter, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee you or for Employee’s your benefit pursuant to the terms of this Agreement Offer Letter or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 10 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee you on the amount of the Covered Payments which are in excess of three times EmployeeExecutive’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee you shall be entitled to the full benefits payable under this Agreement; andOffer Letter. (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.Section

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 22 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. 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 three times Employee’s the Covered Payments is subject to the Excise Tax. “base amountNet Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employee’s the Executive's benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 23 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. 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 three times Employee’s the Covered Payments is subject to the Excise Tax. “base amountNet Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 23 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. 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 three times Employee’s the Covered Payments is subject to the Excise Tax. “base amountNet Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 23 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1a) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (b) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (a) above is less than the amount under (b) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of three times Employee’s the Covered Payments is subject to the Excise Tax. “base amountNet Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. (a) Notwithstanding any other provisions of contrary provision in this Agreement, or if Executive is a “disqualified individual” (as defined in Section 280G of the Code), and the amounts that would otherwise be paid to Executive under this Agreement together with any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or that Executive has a right to receive from the Company and affiliated entities required to be provided by aggregated in accordance with Q/A-10 and Q/A-46 of Treas. Reg. § 1.280G-l (collectively, the Company or its affiliates to Employee or for Employee“Payments”) would constitute a “parachute payment” (as defined in Section 280G of the Code), the Payments shall be either (i) reduced (but not below zero) so that the aggregate present value of such Payments shall be $1.00 less than three times Executive’s benefit pursuant “base amount” (as defined in Section 280G of the Code) (the “Safe Harbor Amount”) and so that no portion of such Payments shall be subject to the terms excise tax imposed by Section 4999 (the “Excise Tax”); or (ii) paid in full, whichever produces the better net after-tax result for Executive (taking into account any applicable Excise Tax and any applicable federal, state and local income and employment taxes). (b) The reduction of Payments, if applicable, shall be made by reducing, first, severance amounts to be paid in cash hereunder in the order in which such payments would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and second, by reducing any other cash payments that would be payable to Executive outside of this Agreement or otherwise which are valued in full for purposes of Code Section 280G in a similar order (“Covered Payments”) constitute “parachute payments” within the meaning last to first), and third, by reducing any equity acceleration hereunder of awards which are valued in full for purposes of Section 280G of the Code and would, but for this Section 3.3(c) be subject in a similar order (last to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”first), then and finally, by reducing any other Payment in a similar order (last to first). Notwithstanding the following shall apply: (i) If the Covered Paymentsforegoing, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee all such reductions shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are made in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) a manner that complies with Section 409A to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected determined appropriate by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeBoard.

Section 280G. Notwithstanding any other provisions Holdings represents and warrants that persons holding more than 75% of this Agreementthe voting power of Holdings have, or any other plan, arrangement or agreement prior to the contraryCommencement Date, if any of approved the payments or and benefits provided or payable to be provided Executive under this Agreement and the award agreement (the “Option Agreement”) entered by the Company or its affiliates to Employee or for Employee’s benefit and between Executive and Holdings pursuant to the terms MSG WC Holdings 2006 Stock Option Plan in accordance with the requirements under Section 280G(b)(5)(B) of the Code. Anything in this Agreement to the contrary notwithstanding except the following sentence, in the event it shall be determined that any payment or otherwise distribution in the nature of compensation (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Code and wouldCode) to or for the benefit of Executive, but for whether paid or payable pursuant to this Section 3.3(cAgreement (including, without limitation, the accelerated vesting of equity awards held by Executive) or otherwise, would be subject to the excise tax imposed by Section 4999 of the Code (the “280G Payments”), then Executive shall be entitled to receive an additional payment (the “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and excise tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the excise tax imposed upon the 280G Payments. If (x) WCAS together with its affiliates controls in excess of fifty percent (50%) of the voting power of Holdings, (y) persons holding at least 75% of the voting power of Holdings request Executive to waive his rights to any payments that would give rise to the imposition of the excise tax under Section 4999 of the Code in order to subject them to the shareholder vote required by Section 280G and applicable Treasury Regulations thereunder, and (or any successor provision theretoz) or any similar tax imposed by state or local law or any interest or penalties with respect Executive refuses to such taxes (collectively, the “Excise Tax”)waive his entitlement as requested, then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee Executive shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total an amount equal to one-half of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equityGross-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcUp Payment.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. Notwithstanding any The payments, benefits and vesting, if any, to which you are entitled under Section 5 (and all other provisions payments, benefits and vesting to which you may be entitled) shall be provided without regard to whether the deductibility of this Agreementsuch payments, benefits and vesting would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other planpayment, arrangement or agreement benefits and vesting) would subject you to the contrary, if any federal excise tax levied on certain “excess parachute payments” under Section 4999 of the payments or Code (the “Excise Tax”). If any portion of the payments, benefits provided or and vesting to be provided by the Company or its affiliates to Employee or for Employee’s your benefit pursuant to the terms of (including, but not limited to, payments, benefits and vesting under this Agreement or otherwise (but determined without regard to this paragraph) constitutes an “Covered Payments”) constitute “excess parachute paymentspayment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the relevant taxing authority as withholding taxes at such time or times when each payment of Excise Tax is due, an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code Code, the manner and wouldtime of payment, but for and the provisions of this Section 3.3(c) 5(e), shall be subject adjusted to the excise extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax imposed under amounts described at Section 4999 409A(a) (l)(B) or Section 409A(b)(4) of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectivelythe “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the “Excise Tax”), then gross-up payment cannot be made to conform to the following shall apply: (i) If the Covered Payments, reduced by the sum requirements of (1) the Excise Tax and (2) the total Section 409A of the FederalCode, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee gross-up payment shall be entitled determined without regard to any gross-up for the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order409A penalties. The determination as to which whether your payments, benefits and vesting include Excess Parachute Payments and, if so, the amount of such, the alternative provisions amount of Section 3.3(c)(ii) shall apply to Employee any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by a nationally recognized such certified public accounting firm selected by as the Company Board may designate prior to a Change of Control (the “Accounting Firmaccounting firm”). Notwithstanding the foregoing, which if the Internal Revenue Service shall provide detailed supporting calculations both assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability. Notwithstanding anything in this section to the Company and Employee within 15 business days contrary, the maximum amount of the date of terminationgross-up payment, if applicableincluding any gross-up for Section 409A penalties, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employeenot exceed $500,000.

Section 280G. Notwithstanding any other provisions of this Letter Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or any of its affiliates to Employee you or for Employee’s your benefit pursuant to the terms of this Letter Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code and the rules and regulations thereunder (“Section 280G”) and would, but for this Section 3.3(c) 13 be subject to the excise tax imposed under Section 4999 of the of the Internal Revenue Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee you on the amount of the Covered Payments which that are in excess of three times Employee’s your “base amount” within the meaning of Section 280(G) of the Code 280G less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee you shall be entitled to the full benefits payable under this Agreement; andto you. (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which that are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) 13 shall apply to Employee you shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee you within 15 fifteen (15) business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeeyou. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) 13 shall apply, Employee you shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s your residence on the date of termination, net of the maximum reduction in Federal income taxes which that could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeyou.

Section 280G. EXHIBIT 10.1 (a) Notwithstanding any other provisions of anything contained in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if (i) to the extent that any payment or distribution of any type to or for the Executive by the Company, any affiliate of the payments Company, any Person who acquires ownership or benefits provided or to be provided by effective control of the Company or its affiliates to Employee ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Code, or for Employee’s benefit any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Covered Payments”) constitute “parachute payments” (within the meaning of Section 280G of the Code Code), and if (ii) such aggregate would, but for this Section 3.3(c) be subject to if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then be less than the following shall apply: amount the Executive would receive, after all taxes, if the Executive received aggregate Payments equal (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total as valued under Section 280G of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of Code) to only three times Employeethe Executive’s “base amount” (within the meaning of Section 280(G) 280G of the Code less one dollar (the “Threshold Amount”Code), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount$1.00, then the Covered (iii) such Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payments to be made or benefit to be provided to the sum of all Covered Executive shall be subject to the Excise Tax. If the Payments shall not exceed the Threshold Amount. In such eventare so reduced, the Covered Company shall reduce or eliminate the Payments shall be reduced in the following order: (A) by first reducing or eliminating the portion of the Payments which are not payable in cash payments not (other than that portion of the Payments subject to Section 409A; clause (C) hereof), (B) then by reducing or eliminating cash payments (other than that portion of the Payments subject to Section 409A; clause (C) equity-based payments and acceleration; hereof) and (DC) non-then by reducing or eliminating the portion of the Payments (whether payable in cash forms of benefits. To the extent any payment is or not payable in cash) to which Treasury Regulation Section 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time. (b) It is possible that after the determinations and selections made over time (e.g.pursuant to this Section 8.2 the Executive will receive 280G benefits that are, in installmentsthe aggregate, etc.either more or less than the amount provided under this Section 8.2 (hereafter referred to as an “Excess Payment” or “Underpayment,” respectively). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then the payments Executive shall be reduced promptly pay an amount equal to the Excess Payment to the Company, together with interest on such amount at the applicable federal rate (as defined in reverse chronological order. The determination as to which and under Section 1274(d) of the alternative provisions of Section 3.3(c)(iiCode) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of from the date of termination, if applicable, or at the Executive’s receipt of such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on Excess Payment until the date of terminationsuch payment. In the event that it is determined (i) by a court or (ii) by the auditor upon request by a Party, net that an Underpayment has occurred, the Company shall promptly pay an amount equal to the Underpayment to the Executive, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the Executive had the provisions of this Section 8.2 not been applied until the maximum reduction in Federal income taxes which could be obtained from deduction date of such state and local taxespayment. Any determination by the Accounting Firm shall be binding upon the Company and Employee3.

Section 280G. Notwithstanding any other provisions of anything to the contrary in this Agreement, in the event that any compensation, payment or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided distribution by the Company or its and all affiliates to Employee or for Employee’s the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within otherwise, including but not limited to the meaning of Section 280G acceleration of the Code and exercisability and/or vesting of any equity awards (the “Severance Amounts”), would, but for this Section 3.3(c5(i), constitute an “excess parachute payment” as defined in Section 280G of the Code, the following provisions shall apply: (A) be subject if the Severance Amounts, reduced by the sum of (I) the Excise Tax (as defined below) and (II) the total of the federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Amounts which are in excess of the Threshold Amount (as defined below), are greater than or equal to the excise tax imposed Threshold Amount, Executive shall be entitled to the full benefits payable under Section 4999 of this Agreement, and (ii) if the Code Threshold Amount is less than (or any successor provision theretoA) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes the Severance Amounts, but greater than (collectively, B) the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, Severance Amounts reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federalfederal, state, and local income and employment taxes on the amount of the Covered Payments Severance Amounts which are in excess of the Threshold Amount, then the Covered Payments benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments maximum Severance Amounts shall not exceed the Threshold Amount. In such event, For the Covered Payments shall be reduced in the following order: (A) cash payments not subject to purposes of this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.5(i), then “Threshold Amount” shall mean three (3) times Executive’s “base amount” within the payments meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00), and “Excise Tax” shall be reduced in reverse chronological ordermean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with respect to such excise tax. The determination as to which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply to Employee Executive shall be made by a nationally recognized accounting firm selected by the Company or one of its affiliates (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply, Employee Executive shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’s residence on the date of terminationSeparation Date, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.Any

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if (a) If any of the payments or benefits provided received or to be provided received by the Company Executive (including, without limitation, any payment or its affiliates to Employee benefits received in connection with a Change in Control or for Employeethe Executive’s benefit termination of employment, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “Covered 280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and will be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), either (i) if reduction of the amount of the parachute payments by 10% or less will avoid the imposition of the Excise Tax, then such 280G Payments shall be reduced by the minimum amount required so that no amount payable to the Executive will be subject to the Excise Tax, with the cash severance to be reduced first and with any further reductions that may be required to be determined by Tax Counsel (as defined below) in a manner that minimizes the impact to the Executive; or (ii) if (i) does not apply, the Company shall pay to the Executive, no later than ten (10) business days following the Termination Date, an additional amount (the “280G Gross-Up Payment”) equal to the sum of the Excise Tax payable by the Executive on the parachute payments; for purposes of clarity, the 280G Gross-Up Payment is “first level” only, meaning the additional amount paid as 280G Gross-Up Payment will equal the Excise Tax on the Executive’s total excess parachute payments prior to such 280G Gross-Up Payment and will NOT include payment for excise or other taxes that will also be due from the Executive on the 280G Gross-Up Payment. (b) If the Term of this Agreement is extended beyond December 31, 2017, and the Change in Control has not occurred by that date, Section 5.9(a) will no longer apply. In that case, if the 280G Payments constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 5.9, be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following such 280G Payments shall apply: (i) If the Covered Payments, be reduced by the sum of (1) minimum amount required so that no amount payable to the Executive will be subject to the Excise Tax (with the cash severance to be reduced first and with any further reductions that may be required to be determined by Tax Counsel (2as defined below) in a manner that minimizes the total of impact to the FederalExecutive) OR at the Executive’s option, state, and local income and employment taxes payable by Employee on she can elect to receive the full amount of the Covered Payments which are 280G Payment and be subject to and responsible for the payment of all taxes of any kind payable thereon, including the Excise Tax. (c) All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Company (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Company and the Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in excess of three times Employee’s order to make its determinations under this Section 5.9. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services. (d) The Executive hereby agrees with the Company and any successor thereto to in good faith consider and take steps commonly used to minimize or eliminate any “base amountparachute payments” within the meaning of Section 280(G) 280G of the Code less one dollar (the “Threshold Amount”), are greater than or equal if requested to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary do so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of any successor thereto; provided, however, that the alternative provisions of Section 3.3(c)(ii) foregoing language shall applyneither require the Executive to take or not take any specific action in furtherance thereof nor contravene, Employee shall be deemed limit or remove any right or privilege provided to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive under this Agreement.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s 's benefit pursuant to the terms of this Agreement or otherwise (“"Covered Payments”") constitute “"parachute payments” " within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “"Excise Tax”"), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1I) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “'s "base amount” " within the meaning of Section 280(G) of the Code less one dollar (the “"Threshold Amount”"), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii. (iii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of whether Section 3.3(c)(i) or 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s ' 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. Any determination by the Accounting Firm Fim1 shall be binding upon the Company and Employee. (iv) The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee.

Section 280G. Notwithstanding In the event that it shall be determined that any other provisions of this Agreement, payment or any other plan, arrangement distribution to or agreement to for the contrary, if any benefit of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of Executive under this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and under any other Company plan, contract or agreement would, but for the effect of this Section 3.3(c) 11(p), be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then then, at the following shall apply: election of the Executive, in the event that the after-tax value of all Payments (ias defined below) If to the Covered Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, reduced by in the sum aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount (as defined below), (1) the Excise Tax cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the total reduction of the Federalcash portions of the Payments, statepayable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and local income and employment taxes payable by Employee on (3) if the amount reduction of all cash portions of the Covered Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in excess the aggregate, equals the Safe Harbor Amount. As used herein, (x) “Payment” shall mean any payment or distribution in the nature of three compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise, (y) “Safe Harbor Amount” shall mean 2.99 times Employeethe Executive’s “base amount,” within the meaning of Section 280(G280G(b)(3) of the Code, and (z) “Parachute Value” of a Payment shall mean the present value as of the date of the Change in 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) of the Code less one dollar (the “Threshold Amount”), are greater than or equal for purposes of determining whether and to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) what extent the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall will apply to Employee such Payment. All calculations under this section shall be made by a nationally recognized accounting firm selected reasonably by the Company (and the “Accounting Firm”), which shall provide detailed supporting calculations both to Company’s outside auditor at the Company Company’s expense and Employee within 15 business days of at the date of termination, if applicable, or at such earlier time as is times reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c1(i) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee Executive on the amount of the Covered Payments which are in excess of three times EmployeeExecutive’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee Executive shall be entitled to the full benefits payable under this Agreement; and. (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii1(j) shall apply to Employee Executive shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee Executive within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii1(j) shall apply, Employee Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’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. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Section 280G. (ii) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employee’s the Executive's benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 23 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. 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 three times Employee’s the Covered Payments is subject to the Excise Tax. “base amountNet Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement arrangement, or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” payments within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) and would, but for this Section 3.3(c) 20, be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total or not be deductible under Section 280G of the FederalCode, state, and local income and employment taxes payable by Employee on then such Covered Payments shall be reduced to the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal is subject to the Threshold AmountExcise Tax, Employee shall be entitled to the full benefits payable under this Agreement; and but only if (ii) If the Threshold Amount is less than (1i) the net amount of such Covered Payments, but greater than as so reduced (2) and after subtracting the Covered Payments reduced by the sum net amount of (x) the Excise Tax and (y) the total of the Federalfederal, state, state and local income and employment taxes on such reduced Covered Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Covered Payments Payments), is greater than or equal to (ii) the net amount of such Covered Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Covered Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Covered Payments which are in excess and after taking into account the phase out of the Threshold Amount, then the itemized deductions and personal exemptions attributable to such unreduced Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold AmountPayments). In such event, the The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, the following order: (A) cash payments not reduction shall be made in a manner consistent with the requirements of Section 409A, to the extent applicable, and where two or more economically equivalent amounts are subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To reduction but payable at different times, such amounts payable at the extent any payment is to be made over later time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employeefirst but not below zero.

Section 280G. A. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates or subsidiaries to Employee the Executive or for Employee’s the Executive's benefit pursuant to the terms of this Agreement or otherwise otherwise, including, without limitation, payments in connection with a Change in Control or the vesting of shares of Restricted Stock, RSUs, SARs, stock options or other equity awards or other non-cash benefits or property, whether pursuant to the terms of this Agreement or any other plan, arrangement, or agreement with the Company or any affiliated company (the “Covered Payments”) constitute “parachute payments” payments within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 7, be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) after payment of the Code less one dollar (the “Threshold Amount”), are greater than or equal Excise Tax to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. If the Threshold Amount amount calculated under subsection (i) of this Section 7(A) is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount under subsection (ii) of the Covered Payments which are in excess of the Threshold Amountthis Section 7(A), then the Covered Payments will be reduced or cut back by the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. B. Any such reduction shall be made in accordance with Section 409A of the 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 (but not below zeroii) to the extent necessary so that the sum of all other Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall then be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.follows:

Section 280G. Notwithstanding In the event that it shall be determined that any other provisions of this Agreement, payment or any other plan, arrangement or agreement distribution to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s the benefit pursuant to the terms of Executive under this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and under any other Company plan, contract or agreement would, but for the effect of this Section 3.3(c) 7.16, be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then then, at the following shall apply: election of Executive, in the event that the after-tax value of all Payments (ias defined below) If to Executive (such after-tax value to reflect the Covered deduction of the Excise Tax and all income or other taxes on such Payments) would, reduced by in the sum aggregate, be less than the after-tax value to Executive of the Safe Harbor Amount (as defined below), (1) the Excise Tax cash portions of the Payments payable to Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the total reduction of the Federalcash portions of the Payments, statepayable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and local income and employment taxes payable by Employee on (3) if the amount reduction of all cash portions of the Covered Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in excess the aggregate, equals the Safe Harbor Amount. As used herein, (x) “Payment” shall mean any payment or distribution in the nature of three times Employee’s “base amount” compensation (within the meaning of Section 280(G280G(b)(2) of the Code less one dollar (Code) to or for the “Threshold Amount”)benefit of Executive, are greater than whether paid or equal payable pursuant to the Threshold Amountthis Agreement or otherwise, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.Safe Harbor

Section 280G. Notwithstanding In the event that it shall be determined that any other provisions of this Agreement, payment or any other plan, arrangement distribution to or agreement to for the contrary, if any benefit of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of Executive under this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and under any other Company plan, contract or agreement would, but for the effect of this Section 3.3(c) 11(p), be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then in the following shall apply: event that the after-tax value of all Payments (ias defined below) If to the Covered Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, reduced by in the sum aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount (as defined below), (1) the Excise Tax cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the reverse order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the total reduction of the Federalcash portions of the Payments, statepayable under this Agreement, to zero (0) would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other plans shall be reduced, in the reverse order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and local income and employment taxes payable by Employee on (3) if the amount reduction of all cash portions of the Covered Payments, payable pursuant to this Agreement and otherwise, to zero (0) would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in excess the aggregate, equals the Safe Harbor Amount. As used herein, (x) “Payment” shall mean any payment or distribution in the nature of three compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise, (y) “Safe Harbor Amount” shall mean 2.99 times Employeethe Executive’s “base amount,” within the meaning of Section 280(G280G(b)(3) of the Code, and (z) “Parachute Value” of a Payment shall mean the present value as of the date of the Change in 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) of the Code less one dollar (the “Threshold Amount”), are greater than or equal for purposes of determining whether and to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) what extent the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall will apply to Employee such Payment. All calculations under this section shall be made reasonably by a nationally recognized such accounting or consulting firm as selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to mutual agreement of the Company and Employee within 15 business days of the date of terminationExecutive , if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeCompany’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. Any determination by the Accounting Firm shall be binding upon the Company and Employeeexpense.

Section 280G. Notwithstanding any other provisions provision of this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that: (a) For any event subject to Section 280G(b)(2)(A)(i) of the Code (defined below) occurring on or prior to December 31, 2014: (i) In the event that the aggregate value, as determined for purposes of Section 280G of the Code, of any payments or benefits provided or to be provided of any type by the Company Employer or its affiliates any subsidiary of the Employer to Employee or for Employee’s the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any other agreement or otherwise (“Covered Payments”) ), would constitute an “excess parachute paymentspayment” within the meaning of pursuant to Section 280G 4999 of the Code Code, and would, but for this Section 3.3(c) such Payments would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law Code, or any interest or penalties would be incurred by the Executive with respect to such taxes excise tax (collectivelysuch excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive from the Employer an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of the Excise Tax and all income and employment taxes (and any interest and penalties imposed with respect thereto) imposed upon the Gross Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Any Gross-Up Payment shall be paid by the Employer to the Executive as soon as administratively practicable but in no event later than the earlier of (x) the date such tax under Section 4999 is due to be paid by the Executive (or withheld by the Employer and paid) to the Internal Revenue Service and (y) the end of the Executive’s taxable year following the year in which the Executive remits the Excise Tax to the Internal Revenue Service. (ii) Section 7(a)(i) to the contrary notwithstanding, if it is determined that the Executive is entitled to a Gross-Up Payment but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 7% of the Payments, then the Payments shall applybe reduced to the maximum amount that would not result in the imposition of the Excise Tax (the “Safe Harbor Amount”). If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments is nonqualified deferred compensation under Section 409A (defined below), then the reduction shall occur in the manner that the Executive elects in writing prior to the date of payment. If any Payment constitutes nonqualified deferred compensation or if the Executive fails to elect an order, then the payments to be reduced shall be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, shall be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. (iii) The Executive shall notify the Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment (or further payment) by the Employer of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than thirty (30) business days after the Executive is informed in writing of such claim and shall apprise the Employer of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which the Executive gives such notice to the Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is required). If the Employer notifies the Executive prior to the expiration of such period that it desires to contest such claim, the Executive shall cooperate with the Employer in so contesting; provided, that the Employer shall bear and pay directly all reasonable costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax, income and employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (iv) If, after the Executive’s receipt of a Gross-Up Payment, the Executive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates, the Executive shall promptly pay to the Employer the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). (b) For any event subject to Section 280G(b)(2)(A)(i) of the Code occurring after December 31, 2014: (i) If The aggregate payments or benefits to be made or afforded to the Covered Payments, reduced by Executive under the sum of (1) this Agreement or from the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are Employer in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar any other manner (the “Threshold AmountTermination Benefits”)) would be deemed to include an “excess parachute payment” under Section 280G of the Code, are greater than or equal to the Threshold Amountany successor thereto, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If such Termination Benefits were reduced to an amount (the Threshold Amount “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than (1) the Covered Paymentsamount that would result in an “excess parachute payment” under Section 280G of the Code, but and the Non-Triggering Amount would be greater than the aggregate value of Termination Benefits (2without such reduction) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on minus the amount of the Covered Payments which are in excess tax required to be paid by Executive thereon by Section 4999 of the Threshold AmountCode, then the Covered Payments Termination Benefits shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall Termination Benefits are not exceed more than the Threshold Non-Triggering Amount. In such eventThe application of said Section 280G, and the Covered Payments allocation of the reduction required by this Section, shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected determined by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeEmployer’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. Any determination by the Accounting Firm shall be binding upon the Company and Employeeauditors.

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 21 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. 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 three times Employee’s the Covered Payments is subject to the Excise Tax. “base amountNet Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 6 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of 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. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, (A) until September 20, 2017, Section 11(b) of the Prior Agreement shall continue to apply and (B) following September 20, 2017, if any of the payments or benefits provided or to be provided by the Company or its affiliates Affiliates to Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise constitute parachute payments (“Covered Parachute Payments”) constitute “parachute payments” within the meaning of Section 280G (as may be amended or replaced) of the Internal Revenue Code and wouldof 1986, but for this Section 3.3(cas amended (the “Code”) then such Parachute Payments to be made to Executive hereunder shall be payable either (1) in full or (2) as to such lesser amount which would result in no portion of such Parachute Payments being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes excise tax (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total whichever of the Federalforegoing amounts, statetaking into account the applicable federal, state and local income taxes and employment taxes payable by Employee the Excise Tax, results in Executive’s receipt on an after-tax basis, of the greatest amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full economic benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum notwithstanding that all or some portion of (x) such benefits may be subject to the Excise Tax and (y) the total Tax. If a reduction in Parachute Payments is necessary so that no portion of the FederalParachute Payments is subject to the Excise Tax, statereduction shall occur in the manner that results in the greatest economic benefit to Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. If this Section 10(b)(i) is applied to reduce an amount payable to Executive, and local income and employment taxes on the amount of IRS successfully asserts that, despite the Covered Payments which reduction, Executive has nonetheless received payments that are in excess of the Threshold Amountmaximum amount that could have been paid to him without being subjected to any Excise Tax, then the Covered Payments shall then, unless it would be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by unlawful for the Company (the “Accounting Firm”)to make such a loan or similar extension of credit to Executive, which shall provide detailed supporting calculations both Executive may repay such excess amount to the Company and Employee within 15 business days of though such amount constitutes a loan to Executive made at the date of terminationpayment of such excess amount, if applicable, or bearing interest at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which 120% of the alternative provisions of Section 3.3(c)(iiapplicable federal rate (as determined under section 1274(d) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction Code in Federal income taxes which could be obtained from deduction respect of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeloan).