Common use of Limitation on Payments Clause in Contracts

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. (a) In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 9, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and any post-termination severance benefits payable under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. (b) If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Tax. following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards (by cutting back performance-based awards first and then time-based awards, based on reverse order of vesting dates (rather than grant dates)), if applicable; and (iii) reduction of employee benefits. (c) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 9 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated accountants or by agreement between Employee and Company such other person or entity to which the Parties mutually agree (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposesCompany. For purposes of making the calculations required by this Section 59, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Firm may incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 59.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee You (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 6D, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments Your severance and other benefits under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments severance and other benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee You on an after-tax basis basis, of the greatest amount of payments severance and other benefits, notwithstanding that all or some portion of such payments severance and other benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee You otherwise agree in writing, any determination required under this Section 5 shall 6D will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to Change of Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee You and the Company for all purposes. For purposes of making the calculations required by this Section 56D, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall You will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur 6D. In the event the Accountants determine that this Section 6D requires a reduction in Your severance or other benefits, You will be provided the following reasonable opportunity to determine the order as reasonably in which severance and other benefits will be reduced. If You fail to make an appropriate reduction election within the reasonable time period determined by the Accountants: (1) Committee, in its sole discretion, the order of reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Committee.

Limitation on Payments. In (a) If the event that the payments and Change in Control Severance Benefits together with any other benefits provided for payment or benefit Employee would receive pursuant to a Change in this Agreement or otherwise payable to Employee Control (collectively, “Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable such Payment shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Employee’s receipt, on an after-tax basis basis, of the greatest greater amount of payments and benefits, the Payment notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by lf a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or or benefits required by this Section 5 constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order as reasonably determined by the Accountantsunless Employee elects in writing a different order: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) cancellation of acceleration of vesting; reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)employee benefits. In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting it shall be cancelled in the reverse order of the date of grant of the Equity Awards unless Employee elects in writing a manner such as to obtain different order for cancellation. (b) The Company may engage the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined accounting firm engaged by the AccountantsCompany for general audit purposes as of the day prior to the effective date of the Change in Control or another firm to perform the foregoing calculations. In no event will Employee exercise any discretion The Company shall bear all expenses with respect to the ordering of any reduction of payments determinations by such firm required to be made hereunder. (c) The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Employee and the Company within fifteen (15) calendar days after the date on which Employee’s right to a Payment is triggered (if requested at that time by Employee or benefits pursuant to this Section 5the Company) or such other time as requested by Employee or the Company.

Limitation on Payments. In Notwithstanding anything contained herein to the contrary, in no event shall the total compensation paid out upon the departure of the Executive be in excess of that considered by the FDIC or the California Department of Business Oversight—Division of Financial Institutions to be safe and sound at the time of such payment, taking into consideration all applicable laws, regulations, or other regulatory guidance. Any payments and other benefits provided for in made to the Executive, pursuant to this Agreement or otherwise, are subject to and conditioned upon compliance with all applicable banking regulations, including, but not limited to, 12 U.S.C. Section 1828(k) and any regulations promulgated thereunder. The Executive agrees that should any payments that are made or benefits that are provided pursuant to this Agreement be considered unsafe or unsound or otherwise prohibited by applicable law, regulation or regulatory order, the Executive agrees that he/she shall return or otherwise reimburse the Company for the amount of such prohibited payments or benefits to the maximum extent required by such law, regulation or regulatory order. Without limiting the foregoing, the Executive agrees to promptly comply with any applicable rule or regulation which requires the return or reimbursement to the Company of any payments, benefits or other compensation, including, but not limited to, return or reimbursement in connection with any incentive compensation previously paid prior to the issuance of a financial restatement as required under the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all regulations promulgated by any self-regulatory organization on which the Company’s common stock may then be listed. Notwithstanding any other provisions of this Agreement, if the Company’s principal tax advisor determines that the total amounts payable pursuant to Employee this Agreement, together with other payments to which the Executive is entitled, would constitute an “excess parachute payment” (i) constitute “parachute payments” within the meaning of as defined in Section 280G of the Internal Revenue Code of 1986Code), as amended amended, then the total payment under section 1.A above (and proportionally each monthly installment thereof) shall be reduced to the “Code”) and (ii) would largest amount which may be paid without any portion of such amount being subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Internal Revenue Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s payments and benefits under this Agreement or otherwise payable to Employee shall be either (a) delivered in full (without the Company paying any portion of the Excise Tax)full, or (b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. The payments or benefits subject to any such reduction shall be reduced by Vitesse in its reasonable discretion in the following order: (i) reduction of any payments and benefits may subject otherwise payable to Executive that are exempt from Section 409A of the Excise TaxCode, and (ii) reduction of any other payments and benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by Vitesse. Unless the Company Vitesse and Employee Executive otherwise agree in writing, any determination required under this Section 5 section shall be made in writing by a nationally-recognized Vitesse’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee Executive and the Company Vitesse for all purposes. For purposes of making the calculations required by this Section 5section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company Vitesse and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5section. Any reduction Vitesse shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5section.

Limitation on Payments. In the event that the payments and other severance benefits provided for in this Agreement or and/or other payments and benefits otherwise payable provided to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (Code, then, at the “Excise Tax”)election of Executive, then EmployeeExecutive’s severance benefits under Section 3, and/or the other payments and benefits under this Agreement or otherwise payable provided to Employee shall Executive, will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of severance benefits and other payments and benefits, notwithstanding that all or some portion of such severance benefits and other payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall will be made in writing by a nationally-recognized the Company’s outside legal counsel or independent public accounting accountants or other firm designated selected by agreement between Employee and the Company (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by made pursuant to this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last made in accordance with the same categorical ordering rulefollowing order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”) (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In the event items described in (2) or (3) are to each case, reductions shall be reduced, reduction shall occur made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax excise tax will be the first payment or benefit to be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. The receipt of any severance benefits pursuant to Section 3 will be subject to Employee signing and not revoking a separation agreement and release of claims in a form acceptable to the Company on or before the deadline contained in such agreement. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, 1986 as amended (the “"Code”") and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and 's severance benefits under this Agreement or otherwise payable to Employee Section 3(a)(i) shall be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, amounts taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”)Company's Accountants immediately prior to Change of Control, whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (42) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights)equity awards; provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or and (3) are reduction of other benefits paid or provided to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Employee. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant for Employee’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5basis.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or and otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) but for this Section 6, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and benefits under this Agreement Section 3 or otherwise payable to Employee shall Executive will be either either: (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. If a reduction in benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Taxfollowing order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Section 280G of the Code), (iii) reduction of employee benefits. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 8 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “AccountantsFirm”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 56, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Firm may incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 58.

Limitation on Payments. In (a) If the event that the payments and Change in Control Severance Benefits together with any other benefits provided for payment or benefit Employee would receive pursuant to a Change in this Agreement or otherwise payable to Employee Control (collectively, “Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable such Payment shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Employee’s receipt, on an after-tax basis basis, of the greatest greater amount of payments and benefits, the Payment notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by If a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or or benefits required by this Section 5 constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) cancellation of acceleration of vesting; reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)cash employee benefits. In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting it shall be cancelled in a manner the reverse order of the date of grant of the Equity Awards. To the extent any such as benefit is to obtain be provided over time, then the best economic benefit for Employee shall be reduced in reverse chronological order. (with reductions made pro-rata if economically equivalent), as determined b) The Company may engage the accounting firm engaged by the AccountantsCompany for general audit purposes as of the day prior to the effective date of the Change in Control or another firm to perform the foregoing calculations. In no event will Employee exercise any discretion The Company shall bear all expenses with respect to the ordering of any reduction of payments determinations by such firm required to be made hereunder. (c) The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Employee and the Company within fifteen (15) calendar days after the date on which Employee’s right to a Payment is triggered (if requested at that time by Employee or benefits pursuant to this Section 5the Company) or such other time as requested by Employee or the Company.

Limitation on Payments. In To the event extent that any of the payments and other or benefits provided for in this Agreement or otherwise payable to the Employee (icollectively the “Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) and, but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable such Payment shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payments that would result in no portion of such payments and benefits the Payments being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payments, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Employee’s receipt, on an after-tax basis basis, of the greatest greater amount of payments and benefits, the Payments notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by If a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or or benefits required by this Section 5 constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order as reasonably determined by unless the Accountants: Employee elects in writing a different order (1) reduction provided, however, that such election shall be subject to Company approval if made on or after the effective date of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) the event that triggers the Payment): reduction of cash payments; (3) cancellation of accelerated vesting of stock options and restricted stock; reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)employee benefits. In the event that acceleration of vesting of equity-based awards stock compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Employee’s stock options and restricted stock (i.e., earliest granted stock awards cancelled last) unless the Employee elects in writing a manner such as to obtain the best economic benefit different order for Employee (with reductions made pro-rata if economically equivalent), as determined cancellation. The accounting firm engaged by the AccountantsCompany for general audit purposes as of the day prior to the effective date of the Hostile Takeover or Change of Control shall perform the foregoing calculations. In no event will Employee exercise any discretion If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Hostile Takeover or Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the ordering determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Employee and the Company within fifteen (15) calendar days after the date on which the Employee’s right to a Payment is triggered (if requested at that time by the Employee or the Company) or such other time as requested by the Employee or the Company. If the accounting firm determines that no Excise Tax is payable with respect to the Payments, either before or after the application of any reduction the Reduced Amount, it shall furnish the Employee and the Company with an opinion reasonably acceptable to the Employee that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of payments or benefits pursuant to this Section 5the accounting firm made hereunder shall be final, binding and conclusive upon the Employee and the Company.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “"Accountants”"), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “"out-of-the-money” " stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “"out-of-the-money” " stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In (a) If any payment or benefit Executive will or may receive from the event that the payments and other benefits provided for in this Agreement Company or otherwise payable to Employee (a “280G Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable any such 280G Payment (a “Payment”) shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment (after reduction) being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of amount (i.e., the foregoing amountsamount determined by clause (x) or by clause (y)), after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Executive’s receipt, on an after-tax basis basis, of the greatest amount of payments and benefits, greater economic benefit notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless If a reduction in a Payment is required pursuant to the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee preceding sentence and the Company for all purposes. For purposes Reduced Amount is determined pursuant to clause (x) of making the calculations required by this Section 5preceding sentence, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by manner (the Accountants: (1“Reduction Method”) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata results in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best greatest economic benefit for Employee Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. (with reductions made pro-rata if economically equivalent)b) Unless Executive and the Company agree on an alternative accounting firm or law firm, as determined the accounting firm engaged by the AccountantsCompany for general tax compliance purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. In no event will Employee exercise any discretion If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting or law firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the ordering of any reduction of payments determinations by such accounting or benefits law firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting or law firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to Executive and the Company within fifteen (15) calendar days after the date on which Executive’s right to a 280G Payment becomes reasonably likely to occur (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company. (c) If Executive receives a Payment for which the Reduced Amount was determined pursuant to this clause (x) of Section 54(a) and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of Section 4(a) so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) of Section 4(a), Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Covered Person (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employeethe Covered Person’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 3(a)(i) shall be either either (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee the Covered Person on an after-after tax basis basis, of the greatest amount of severance payments and benefits, notwithstanding that all or some portion of such severance payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee the Covered Person otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally-recognized the accounting firm serving the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change of Control (the “Accountants”)) in good faith consultation with the Covered Person. In the event of a reduction in benefits hereunder, whose determination such benefits shall be conclusive reduced in the following order: (a) cash payments not subject to Section 409A of the Code; (b) cash payments subject to Section 409A of the Code; (c) equity compensation; and binding upon Employee and (d) non-cash forms of benefit. To the Company for all purposesextent any payment is to be made over time, then the payment shall be reduced in reverse chronological order. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable the application taxes and may rely on reasonable, reasonable good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Covered Person shall furnish to the Accountants such information and documents as the Accountants may reasonably reasonable request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this Section 5(c), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and Executive's severance benefits under this Agreement or otherwise Subsection 5(c) will be payable to Employee shall be either delivered either: (i) in full full; or (without the Company paying any portion of the Excise Tax), or delivered ii) as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise Tax, Code; whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 5(c) will be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change of Control (the “"Accountants”"), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 55(c), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 55(c). Any If a reduction in payments and/or or benefits required by this Section 5 shall constituting "parachute payments" is necessary so that they do not constitute "parachute payments," reduction will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction employee benefits; cancellation of accelerated vesting acceleration of equity-based equity awards; cancellation of equity awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are considered to be reduced, reduction shall occur in reverse chronological order such that "contingent" upon the payment or benefit owed on the latest date following the occurrence Change of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Control transaction.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and 's benefits under this Agreement or otherwise payable to Employee shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Taxfollowing order: reduction of cash payments, cancellation of equity awards granted within the twelve (12) month period prior to a “change in control” (as determined under Code Section 280G) that are deemed to have been granted contingent upon the change in control (as determined under Code Section 280G), cancellation of accelerated vesting of equity awards, reduction of employee benefits. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Section.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and 's severance benefits under this Agreement or otherwise payable to Employee Sections 2(a) and 2(b) shall be either delivered payable either: (a) in full full, or (without the Company paying any portion of the Excise Tax), or delivered b) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments severance benefits under Section 2(a) and benefits2(b), notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 4 shall be made in writing by a nationally-recognized independent public accounting firm designated accountants agreed to by agreement between the Company and the Employee and Company (the “"Accountants”"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. (a) In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and severance benefits under this Agreement or otherwise payable to Employee shall be either delivered payable either (i) in full full, or (without the Company paying any portion of the Excise Tax), or delivered ii) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefitsseverance benefits under this Agreement, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee otherwise agree in writing, any Any determination required under this Section 5 shall be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 5. Any necessary reductions shall occur be implemented by reduction of payments to Executive in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) reduction cancellation of non-cash/non-equity-based payments or benefits accelerated vesting of stock options; and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are paid to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Executive. In the event that acceleration of vesting of equity-based awards equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by reverse order of the Accountants. In no event will Employee exercise any discretion with respect to the ordering date of any reduction grant of payments or benefits pursuant to this Section 5Executive’s equity awards.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and severance benefits under this Agreement or otherwise payable to Employee shall Section 2 will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 4 will be made in writing by a nationally-recognized the Company’s independent public accountants immediately prior to a Change in Control or a “Big Four” national accounting firm designated selected by agreement between Employee and the Company (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposespurposes in the absence of manifest error. The Accountants shall provide Executive with a written report of its determinations hereunder, including reasonably detailed supporting calculations.. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 54. Any reduction in payments and/or benefits required by this Section 5 4 shall occur in a manner necessary to provide Executive with the following order as reasonably determined by the Accountants: (1) greatest economic benefit. If more than one manner of reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits yields the greatest economic benefit, the payments and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountantspro rata. In no event will Employee Executive exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 54.

Limitation on Payments. (a) In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (iix) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (iiiiy) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and severance benefits under this Agreement or otherwise payable to Employee shall be either delivered payable either: (i) in full full, or (without the Company paying any portion of the Excise Tax), or delivered ii) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefitsseverance benefits under this Agreement, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee otherwise agree in writing, any Any determination required under this Section 5 shall be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 5. Any necessary reductions shall occur be implemented by reduction of payments to Executive in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) reduction cancellation of non-cash/non-equity-based payments or benefits accelerated vesting of stock options; and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are paid to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Executive. In the event that acceleration of vesting of equity-based awards equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by reverse order of the Accountants. In no event will Employee exercise any discretion with respect to the ordering date of any reduction grant of payments or benefits pursuant to this Section 5Executive’s equity awards.]

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Taxfollowing order: reduction of cash payments, cancellation of equity awards granted within the twelve (12) month period prior to a “change in control” (as determined under Code Section 280G) that are deemed to have been granted contingent upon the change in control (as determined under Code Section 280G), cancellation of accelerated vesting of equity awards, reduction of employee benefits. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Section.

Limitation on Payments. (a) In the event that Employee shall become entitled to the payments and other and/or benefits provided for in by Section 10(c) or any other amounts (whether pursuant to the terms of this Agreement or otherwise payable to Employee (iany other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") or any person affiliated with the Company or such person) as a result of a Change of Control (collectively the "Company Payments"), and (ii) would such Company Payments will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed) the “Company shall pay to Employee at the time specified in subsection (d) below an additional amount (the "Gross-up Payment") such that the net amount retained by Employee, after deduction of any Excise Tax”Tax on the Company Payments and any federal, state, and local income or payroll tax upon the Gross-up Payment provided for by this paragraph (a), but before deduction for any federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. Notwithstanding the foregoing provisions of this Section 11 to the contrary, if it shall be determined that Employee is entitled to a Gross-up Payment, but the Company Payments do not exceed one hundred five percent (105%) of the greatest amount that could be paid to Employee such that the receipt of Company Payments would not give rise to any Excise Tax (the "Reduced Amount"), then Employee’s payments and benefits under this Agreement or otherwise payable no Gross-up Payment shall be made to Employee and the Company Payments, in the aggregate, shall be either delivered in full reduced to the Reduced Amount. (without b) For purposes of determining whether any of the Company paying any portion Payments and Gross-up Payments (collectively the "Total Payments") will be subject to the Excise Tax and determining the amount of such Excise Tax: (i) the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Excise Tax)Code, or delivered and all "parachute payments" in excess of the "base amount" (as to such lesser extent which would result in no portion defined under Code Section 280G(b)(3) of such payments and benefits being the Code) shall be treated as subject to the Excise Tax, whichever unless and except to the extent that, in the opinion of the foregoing amountsCompany's independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by such accountants (the "Accountants") such Total Payments (in whole or in part), taking (A) do not constitute "parachute payments," (B) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or (C) are otherwise not subject to the Excise Tax; and (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Gross-up Payment, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee's residence for the calendar year in which the Company Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the applicable time the Gross-up Payment is made, Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal, state and local income taxes tax imposed on the portion of the Gross-up Payment being repaid by Employee if such repayment results in a reduction in Excise Tax or a federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any portion of the Gross-up Payment to be refunded to the Company has been paid to any federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to Employee, and interest payable to the Company shall not exceed the interest received or credited to Employee by such tax authority for the period it held such portion. Employee and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if Employee's claim for refund or credit is denied. In the event that the Excise Tax, results in Tax is later determined by the receipt Accountants or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-up Payment is made (including by Employee on an after-tax basis reason of any payment the existence or amount of which cannot be determined at the time of the greatest Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of payments and benefits, notwithstanding that all such excess is finally determined. (d) The Gross-up Payment or some portion of such payments and benefits may subject thereof provided for in subsection (c) above shall be paid not later than the thirtieth (30th) day following an event occurring which subjects Employee to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any nonif the amount of such Gross-taxable up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Employee on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments or benefits and shall pay the remainder of such payments (together with interest at the rate provided in Code Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to subsection (c) hereof, as soon as the amount thereof can reasonably be reduced last determined, but in accordance with no event later than the same categorical ordering rule. In the event items described in ninetieth (290th) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following day after the occurrence of the event triggering subjecting Employee to the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Tax. In the event that acceleration the amount of vesting of equity-based awards is the estimated payments exceeds the amount subsequently determined to be reducedhave been due, such acceleration of vesting excess shall be cancelled in constitute a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined loan by the Accountants. Company to Employee, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (e) In no the event will Employee exercise any discretion with respect to the ordering of any reduction of payments controversy with the Internal Revenue Service (or benefits pursuant other taxing authority) under this Section 11, Employee shall permit the Company to control issues related to this Section 511 (at its expense), provided that such issues do not potentially materially adversely affect Employee, but Employee shall control any other issues. In the event the issues are interrelated, Employee and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree, Employee shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, Employee shall permit the representative of the Company to accompany him, and Employee and his representative shall cooperate with the Company and its representative. (f) The Company shall be responsible for all charges of the Accountants.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 9, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments Executive's severance and other benefits under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments severance and other benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments severance and other benefits, notwithstanding that all or some portion of such payments severance and other benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 9 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to a Change of Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 59, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 59. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall 9. In the event the Accountants determine that this Section 9 requires a reduction in Executive's severance or other benefits, the reduction will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction employee benefits; cancellation of accelerated vesting acceleration of equity-based equity awards; cancellation of equity awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are considered to be reduced, contingent upon the Change of Control transaction. If Executive fails to make an appropriate reduction shall occur in reverse chronological order such that election within the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as reasonable time period determined by the Accountants. In no event will Employee exercise any discretion with respect to Board, in its sole discretion, the ordering order of any reduction of payments or benefits pursuant to this Section 5shall be determined by the Board.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any corresponding provisions of state income tax law), then the Employee’s payments and 's benefits under this Agreement or otherwise payable to Employee Section 3(a) shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis tax-basis, of the greatest greater amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “"Accountants”"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)5. In the event that acceleration of vesting of equity-based awards is to be reducedsubsection (a) above applies, such acceleration of vesting then Employee shall be cancelled in a manner such as to obtain the best economic benefit responsible for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion excise taxes imposed with respect to such benefits. In the ordering event that subsection (b) above applies, then each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid imposition of any reduction of payments or benefits pursuant to this Section 5such excise taxes.

Limitation on Payments. (a) In the event that the any payments and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 15, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and any post-termination severance benefits payable under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise Tax, Code, (iii) whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. (b) If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Tax. following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards (by cutting back performance-based awards first and then time-based awards, based on reverse order of vesting dates (rather than grant dates)), if applicable; and (iii) reduction of employee benefits. (c) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 15 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated accountants or by agreement between Employee and Company such other person or entity to which the parties mutually agree (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposesCompany. For purposes of making the calculations required by this Section 515, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Firm may incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 515.

Limitation on Payments. In (a) Notwithstanding any other provision of this Agreement, if any portion of any payment under this Agreement, or under any other agreement with or plan of the event Company or its affiliates (in the aggregate "Total Payments"), would constitute an "excess parachute payment," then the Total Payments to be made to the Executive shall be reduced such that the payments and other benefits provided for in this Agreement value of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 (or otherwise payable to Employee (iany successor provision) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (iior which the Company may pay without loss of deduction under Section 280G(a) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any successor provision), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meanings assigned to them in Section 280G of the Code (or any successor provision), and such "parachute payments" shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision). Within fifteen (15) days following the Date of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel selected by the Company's independent auditors and acceptable to the Executive in his sole discretion (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income, (ii) the amount and present value of Total Payments and (iii) the amount and present value of any excess parachute payments determined without regard to the limitations of this paragraph (a) of Section 9. As used in this Agreement, the term "Base Period Income" means an amount equal to the Executive's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the Code (or any successor provision). For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. Such opinion shall be dated as of the Date of Termination and addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such opinion determines that there would be an excess parachute payment, any payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Company within thirty (30) days of his receipt of such opinion or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. If such legal counsel so requests in connection with the opinion required by this paragraph (a) of Section 59, the Accountants may make reasonable assumptions Executive and approximations concerning applicable taxes the Company shall obtain, at the Company's expense, and the legal counsel may rely on reasonablein providing the opinion, good faith interpretations concerning the application advice of Section a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive. If the provisions of Sections 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under Code (or any successor provisions) are repealed without succession, then this paragraph (a) of Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits 9 shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) of no further force or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5effect.

Limitation on Payments. In If any payments pursuant to the event that the payments and other benefits provided for in this Agreement or otherwise payable would be subject to Employee (i) constitute “parachute payments” within the meaning of tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise TaxPayments”), then Employee’s payments and benefits under this Agreement Executive shall receive either (i) the full Payments or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion ii) such lesser amount of the Excise Tax), or delivered as to such lesser extent Payment which would result in no portion of such payments and benefits Payments being subject to the Excise TaxSection 4999 tax, whichever of yields the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee greatest net amount to Executive on an after-tax basis (applying the then highest aggregate marginal tax rates). If a reduction of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject Payments is required pursuant to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company subpart (the “Accountants”ii), whose determination shall then Executive will be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 permitted to request which component items of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); Payment will be reduced provided, however, that Executive must provide to the Company in writing his/her request within the reasonable time period established by the Company and the Company must in its discretion consent to such request (or else the Company shall make its own determinations with respect to which Payment items are to be reduced). The Company may elect to contest at its expense any non-taxable payments or benefits initial IRS determination with respect to an Executive. Executive shall cooperate reasonably with the Company in any effort by the Company to contest an IRS determination under this paragraph, including by the making of such filings and appeals as the Company may reasonably require, but nothing herein shall be reduced last construed as requiring Executive to bear any cost or expense of such a contest or in accordance with connection therewith to compromise any tax item (including without limitation any deduction or credit) other than the same categorical ordering ruleSection 4999 tax and related interest and penalties, if any, that are the subject of the contested IRS determination. In the event items described in (2) of any underpayment or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent)overpayment under this Agreement, as determined by the Accountants. In no event will Employee exercise any discretion with respect nationally recognized accounting firm, the amount of such underpayment or overpayment shall be promptly paid to Executive or refunded to the ordering Company, as the case may be, with interest at 120% of any reduction the applicable Federal rate provided for in Section 7872(f)(2) of payments or benefits pursuant to the Internal Revenue Code. All tax determinations under this Section 56 shall be made at the Company’s expense by a nationally recognized accounting firm selected by the Company in its reasonable discretion. Any good faith determinations of this accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Covered Person (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employeethe Covered Person’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 3(a)(i) shall be either either (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee the Covered Person on an after-after tax basis basis, of the greatest amount of severance payments and benefits, notwithstanding that all or some portion of such severance payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee the Covered Person otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally-recognized the accounting firm serving as the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change of Control (the “Accountants”) in good faith consultation with the Covered Person. In the event of a reduction in benefits hereunder, unless the Covered Person provides direction otherwise (which alternative direction shall be subject to the Company’s consent, which shall not be unreasonably withheld), whose determination such benefits shall be conclusive reduced in the following order: (a) cash payments not subject to Section 409A of the Code; (b) cash payments subject to Section 409A of the Code; (c) equity compensation; and binding upon Employee and (d) non-cash forms of benefit. To the Company for all purposesextent any payment is to be made over time, then the payment shall be reduced in reverse chronological order. For purposes of making the calculations required by this Section 5, the Accountants Accountants, in consultation with the Covered Person, may make reasonable assumptions and approximations concerning the applicable taxes and may rely on reasonable, reasonable good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Covered Person shall furnish to the Accountants such information and documents as the Accountants may reasonably reasonable request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In 4.9.1 If any payment or benefit you will or may receive from the event that the payments and other benefits provided for in this Agreement Company or otherwise payable to Employee (a “280G Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable any such 280G Payment (a “Payment”) shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment (after reduction) being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of amount (i.e., the foregoing amountsamount determined by clause (x) or by clause (y)), after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee your receipt, on an after-tax basis basis, of the greatest amount of payments and benefits, greater economic benefit notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless If a reduction in a Payment is required pursuant to the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee preceding sentence and the Company for all purposes. For purposes Reduced Amount is determined pursuant to clause (x) of making the calculations required by this Section 5preceding sentence, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by manner (the Accountants: (1“Reduction Method”) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata results in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best greatest economic benefit for Employee (with reductions made pro-rata if economically equivalent)you. If more than one method of reduction will result in the same economic benefit, as determined the items so reduced will be reduced pro rata. 4.9.2 Unless you and the Company agree on an alternative accounting firm or law firm, the accounting firm engaged by the AccountantsCompany for general tax compliance purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. In no event will Employee exercise any discretion If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting or law firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the ordering of any reduction of payments determinations by such accounting or benefits law firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting or law firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to you and the Company within fifteen (15) calendar days after the date on which your right to a 280G Payment becomes reasonably likely to occur (if requested at that time by you or the Company) or such other time as requested by you or the Company. 4.9.3 If you receive a Payment for which the Reduced Amount was determined pursuant to this clause (x) of Section 54.9.1 and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, you agree to promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of Section 4.9.1 so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) of Section 4.9.1, you shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Covered Person (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employeethe Covered Person’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 3(a)(i) shall be either either (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee the Covered Person on an after-after tax basis basis, of the greatest amount of severance payments and benefits, notwithstanding that all or some portion of such severance payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee the Covered Person otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally-recognized the accounting firm serving the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change of Control (the “Accountants”)) in good faith consultation with the Covered Person. In the event of a reduction in benefits hereunder, whose determination such benefits shall be conclusive reduced in the following order: (a) cash payments not subject to Section 409A of the Code; (b) cash payments subject to Section 409A of the Code; (c) equity compensation; and binding upon Employee and (d) non-cash forms of benefit. To the Company for all purposesextent any payment is to be made over time, then the payment shall be reduced in reverse chronological order. . For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable the application taxes and may rely on reasonable, reasonable good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Covered Person shall furnish to the Accountants such information and documents as the Accountants may reasonably reasonable request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In If any payment or benefit you would receive pursuant to a Change in Control form the event that the payments and other benefits provided for in this Agreement company or otherwise payable to Employee (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of 280Gof the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable such Payment shall be equal to Employee the Reduced Amount, the “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes and the Excise TaxTax (all computed at the highest applicable marginal rate), results in your receipt, on the receipt by Employee on an after-tax basis basis, of the greatest greater amount of payments and benefits, the Payment notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by If a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or or benefits required by this Section 5 constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order as reasonably determined by unless you elect in writing a different order (provided, however, that such election shall be subject to Board approval if made on or after the Accountants: (1) reduction effective date of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) the event that triggers the Payment): reduction of cash payments; (3) cancellation of Acceleration; reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)employee benefits. In the event that acceleration of vesting of equity-based awards Acceleration is to be reduced, such acceleration of vesting it shall be cancelled in the reverse order of the date of grant of your Options (i.e., earliest granted Option cancelled last) unless you elect in writing a manner such as to obtain the best economic benefit different order for Employee (with reductions made pro-rata if economically equivalent), as determined cancellation. The accounting firm engaged by the AccountantsCompany for general audit purposes as of the day prior to the effective date of the Change in control shall perform the foregoing calculations, if the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. In no event will Employee exercise any discretion The Company shall bear all expenses with respect to the ordering determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to you and the Company within fifteen (15) calendar days after the date on which your right to a Payment is triggered (if requested at the time by you or the Company) or such other time as requested by you or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of any reduction the Reduced Amount, it shall furnish you and the Company with an opinion reasonably acceptable to you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of payments or benefits pursuant to this Section 5the accounting firm made hereunder shall be final, binding and conclusive upon you and the Company.

Limitation on Payments. In (a) Anything in this Agreement to the contrary notwithstanding, in the event that a Change in Control or other transaction occurs and any payment or distribution by or on behalf of the payments and other benefits provided Company to or for in the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise payable to Employee (iotherwise) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “CodePayments”) and (ii) would be subject to the excise tax imposed by under Section 4999 of the Internal Revenue Code or any corresponding provisions of state or local excise tax law (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion shall pay or provide Executive with the greater of the following amounts, whichever results in the higher net after-tax amount (after taking into account federal, state, local and payroll taxes at Executive’s marginal rates and the Excise Tax): (a) the Payments; or (b) Payments not in excess of the greatest amount that can be paid without resulting in the imposition of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject . Any reduction to the Excise TaxPayments shall first be made from any cash benefits payable pursuant to this Agreement, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes thereafter as determined by Executive and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the CodeCompany. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order be responsible for timely selecting an accounting firm to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that to whether any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will would be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion reported with respect to the ordering Payments, and the Company shall be responsible for all fees and expenses connected with the determinations made by such accounting firm. (b) Executive agrees to notify the Company in the event of any reduction audit or other proceeding by the IRS or any taxing authority in which the IRS or other taxing authority asserts that any Excise Tax should be assessed against Executive and to cooperate with the Company in contesting any such proposed assessment with respect to such Excise Tax (a “Proposed Assessment”). Executive agrees not to settle any Proposed Assessment without the consent of payments or benefits pursuant the Company. If the Company does not consent to this Section 5.allow Executive to settle the Proposed Assessment within thirty (30) days following such demand therefor, the Company shall indemnify and hold harmless Executive with respect to any additional taxes, interest and/or penalties that Executive is required to pay by reason of the delay in finally resolving Executive’s tax liability (such indemnification to be made as soon as practicable, but in no event later than the end of the calendar year following the calendar year in which Employee makes such remittance)

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this Section 6, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any corresponding provisions of state income tax law), then the Employee’s payments and 's benefits under this Agreement or otherwise payable to Employee Section 4(a) shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis tax-basis, of the greatest greater amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 6 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”"ACCOUNTANTS"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 56, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)6. In the event that acceleration of vesting of equity-based awards is to be reducedsubsection (a) above applies, such acceleration of vesting then Employee shall be cancelled in a manner such as to obtain the best economic benefit responsible for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion excise taxes imposed with respect to such benefits. In the ordering event that subsection (b) above applies, then each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid imposition of any reduction of payments or benefits pursuant to this Section 5such excise taxes.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this COC Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Employee’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 2(a)(i) shall be either either (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 4 shall be made in writing in good faith by a nationally-recognized independent public “Big Four” national accounting firm designated selected by agreement between Employee and the Company (the “Accountants”), whose determination in good faith consultation with the Employee. In the event of a reduction in benefits hereunder, the Employee shall be conclusive and binding upon Employee and given the Company for all purposeschoice of which benefits to reduce. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 9, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments Executive's severance and other benefits under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments severance and other benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments severance and other benefits, notwithstanding that all or some portion of such payments severance and other benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 9 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to a Change of Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 59, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 59. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall 9. In the event the Accountants determine that this Section 9 requires a reduction in Executive's severance or other benefits, the reduction will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction employee benefits; cancellation of accelerated vesting acceleration of equity-based equity awards; cancellation of equity awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are considered to be reduced, contingent upon the Change of Control transaction. If Executive fails to make an appropriate reduction shall occur in reverse chronological order such that election within the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as reasonable -4- time period determined by the Accountants. In no event will Employee exercise any discretion with respect to Board, in its sole discretion, the ordering order of any reduction of payments or benefits pursuant to this Section 5shall be determined by the Board.

Limitation on Payments. In the event that any of the payments and other or benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 4.2, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and or benefits under this Agreement or otherwise payable to Employee shall will be either either: (j) delivered in full full, or (without the Company paying any portion of the Excise Tax), or k) delivered as to such lesser extent which would result in no portion of such payments and or benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999 of the Code, results in the receipt by the Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and or benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall 4.2 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change in Control Date (the “Accountants”), whose determination shall will be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 54.2, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 54.2. The Company will bear all fees and costs payable to the Accountants in connection with any calculations contemplated by this Section 4.2. Any reduction in payments and/or benefits required by this Section 5 4.2 shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rightscash payments, (2) reduction of cash payments; equity acceleration (full-value awards first, then stock options), and (3) reduction of non-cash/non-equity-based payments or other benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with paid to the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Employee. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by reverse order of the Accountants. In no event will Employee exercise any discretion with respect to date of grant of the ordering of any reduction of payments or benefits pursuant to this Section 5equity awards.

Limitation on Payments. In the event that any of the payments and other or benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section IV.E, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and or benefits under this Agreement or otherwise payable to Employee shall will be either either: (A) delivered in full full, or (without the Company paying any portion of the Excise Tax), or B) delivered as to such lesser extent which would result in no portion of such payments and or benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999 of the Code, results in the receipt by the Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and or benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall IV.E will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change in Control Date (the “Accountants”), whose determination shall will be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5IV.E, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. IV.E. The Company will bear all fees and costs payable to the Accountants in connection with any calculations contemplated by this Section IV.E. Any reduction in payments and/or benefits required by this Section 5 IV.E shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rightscash payments, (2) reduction of cash payments; equity acceleration (full-value awards first, then stock options), and (3) reduction of non-cash/non-equity-based payments or other benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with paid to the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Employee. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by reverse order of the Accountants. In no event will Employee exercise any discretion with respect to date of grant of the ordering of any reduction of payments or benefits pursuant to this Section 5equity awards.

Limitation on Payments. In the event that the payments severance and ---------------------- other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue ------------------ Code of 1986, as amended (the “"Code”") and (ii) but for this Section, would be ---- subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and 's benefits under this Agreement or otherwise payable to Employee Sections 2 and 3 shall be either delivered payable either: (a) in full full, or (without the Company paying any portion of the Excise Tax), or delivered b) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments benefits under Sections 2 and benefits3, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 7(1) shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “"Accountants”"), whose ----------- determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 57(1), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights7(1); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In If any payments pursuant to the event that the payments and other benefits provided for in this Agreement or otherwise payable would be subject to Employee (i) constitute “parachute payments” within the meaning of tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise TaxPayments”), then Employee’s payments and benefits under this Agreement Executive shall receive either (i) the full Payments or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion ii) such lesser amount of the Excise Tax), or delivered Payments as would yield the greatest net amount to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis (applying the then highest aggregate marginal tax rates and Section 4999). If a reduction of the greatest amount of payments and Payments is required pursuant to subpart (ii), then the Payments will be reduced in the following order: (i) any cash payments, (ii) any taxable benefits, notwithstanding (iii) any nontaxable benefits, and (iv) any vesting of equity awards in each case in reverse order beginning with payments or benefits that all or some portion are to be paid the farthest in time from the date that triggers the applicability of such payments and benefits may subject the excise tax, to the Excise Tax. Unless extent necessary to maximize the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Codereduced Payment. The Company and Employee shall furnish may elect to contest at its expense any initial IRS determination with respect to the Accountants such information and documents as Executive. The Executive shall cooperate reasonably with the Accountants may reasonably request Company in order any effort by the Company to make a contest an IRS determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined paragraph, including by the Accountants: making of such filings and appeals as the Company may reasonably require, but nothing herein shall be construed as requiring the Executive to bear any cost or expense of such a contest or in connection therewith to compromise any tax item (1including without limitation any deduction or credit) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); providedthe Section 4999 tax and related interest and penalties, howeverif any, that any non-taxable payments or benefits shall be reduced last in accordance with are the same categorical ordering rulesubject of the contested IRS determination. In the event items described in (2) of any underpayment or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent)overpayment under this Agreement, as determined by the Accountants. In no event will Employee exercise any discretion with respect nationally recognized accounting firm, the amount of such underpayment or overpayment shall be promptly paid to the ordering Executive or refunded to the Company, as the case may be, with interest at 120% of any reduction the applicable Federal rate provided for in Section 7872(f)(2) of payments or benefits pursuant to the Internal Revenue Code. All tax determinations under this Section 55(h) shall be made at the Company’s expense by a nationally recognized accounting firm selected by the Company in its reasonable discretion. Any good faith determinations of this accounting firm made hereunder shall be final, binding and conclusive upon the Company and the Executive.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, 1986 as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 3(a)(i) shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, amounts taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject be taxable under Section 4999 of the Code. If a reduction in amounts to be paid must be made so that benefits are delivered to a lesser extent, any cash amounts will be reduced or modified prior to the Excise Taxreduction of any non-cash amounts. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-nationally recognized independent public “Big Four” accounting firm designated selected by agreement between Employee and the Company (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (42) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights)equity awards; provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or and (3) are reduction of other benefits paid or provided to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Employee. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant for Employee’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5basis.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s payments and benefits under this Agreement or otherwise payable to Employee shall be either (a) delivered in full (without the Company paying any portion of the Excise Tax)full, or (b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. The payments or benefits subject to any such reduction shall be reduced by Vitesse in its reasonable discretion in the following order: (i) reduction of any payments and benefits may subject otherwise payable to Executive that are exempt from Section 409A of the Excise TaxCode, and (ii) reduction of any other payments and benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by Vitesse. Unless the Company Vitesse and Employee Executive otherwise agree in writing, any determination required under this Section 5 13 shall be made in writing by a nationally-recognized Vitesse’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee Executive and the Company Vitesse for all purposes. For purposes of making the calculations required by this Section 513, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company Vitesse and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 513. Any reduction Vitesse shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 513.

Limitation on Payments. (a) In the event that Employee shall become entitled to the payments and other and/or benefits provided for in by Section 10(c) or any other amounts (whether pursuant to the terms of this Agreement or otherwise payable to Employee (iany other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code or any person affiliated with the Company or such person) as a result of 1986such change of ownership or effective control (collectively the "COMPANY PAYMENTS"), as amended (the “Code”) and (ii) would such Company Payments will be subject to the excise tax (the "EXCISE TAX") imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed) the “Company shall pay to Employee at the time specified in subsection (d) below an additional amount (the "GROSS-UP PAYMENT") such that the net amount retained by Employee, after deduction of any Excise Tax”Tax on the Company Payments and any federal, state, and local income or payroll tax upon the Gross-up Payment provided for by this paragraph (a), but before deduction for any federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. Notwithstanding the foregoing provisions of this Section 11 to the contrary, if it shall be determined that Employee is entitled to a Gross-up Payment, but the Company Payments do not exceed one hundred five percent (105%) of the greatest amount that could be paid to Employee such that the receipt of Company Payments would not give rise to any Excise Tax (the "REDUCED AMOUNT"), then Employee’s payments and benefits under this Agreement or otherwise payable no Gross-up Payment shall be made to Employee and the Company Payments, in the aggregate, shall be either delivered in full reduced to the Reduced Amount. (without b) For purposes of determining whether any of the Company paying any portion Payments and Gross-up Payments (collectively the "TOTAL PAYMENTS") will be subject to the Excise Tax and determining the amount of such Excise Tax: (i) the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Excise Tax)Code, or delivered and all "parachute payments" in excess of the "base amount" (as to such lesser extent which would result in no portion defined under Section 280G(b)(3) of such payments and benefits being the Code) shall be treated as subject to the Excise Tax, whichever unless and except to the extent that, in the opinion of the foregoing amountsCompany's independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the "ACCOUNTANTS") such Total Payments (in whole or in part), taking (A) do not constitute "parachute payments," (B) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or (C) are otherwise not subject to the Excise Tax; and (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Gross-up Payment, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee's residence for the calendar year in which the Company Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the applicable time the Gross-up Payment is made, Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal, state and local income taxes tax imposed on the portion of the Gross-up Payment being repaid by Employee if such repayment results in a reduction in Excise Tax or a federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any portion of the Gross-up Payment to be refunded to the Company has been paid to any federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to Employee, and interest payable to the Company shall not exceed the interest received or credited to Employee by such tax authority for the period it held such portion. Employee and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if Employee's claim for refund or credit is denied. In the event that the Excise Tax, results in Tax is later determined by the receipt Accountants or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-up Payment is made (including by Employee on an after-tax basis reason of any payment the existence or amount of which cannot be determined at the time of the greatest Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of payments and benefits, notwithstanding that all such excess is finally determined. (d) The Gross-up Payment or some portion of such payments and benefits may subject thereof provided for in subsection (c) above shall be paid not later than the thirtieth (30th) day following an event occurring which subjects Employee to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any nonif the amount of such Gross-taxable up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Employee on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments or benefits and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to subsection (c) hereof, as soon as the amount thereof can reasonably be reduced last determined, but in accordance with no event later than the same categorical ordering rule. In the event items described in ninetieth (290th) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following day after the occurrence of the event triggering subjecting Employee to the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Tax. In the event that acceleration the amount of vesting of equity-based awards is the estimated payments exceeds the amount subsequently determined to be reducedhave been due, such acceleration of vesting excess shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined constitute an advance by the Accountants. Company to Employee, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (e) In no the event will Employee exercise any discretion with respect to the ordering of any reduction of payments controversy with the Internal Revenue Service (or benefits pursuant other taxing authority) under this Section 11, Employee shall permit the Company to control issues related to this Section 511 (at its expense), provided that such issues do not potentially materially adversely affect Employee, but Employee shall control any other issues. In the event the issues are interrelated, Employee and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree, Employee shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, Employee shall permit the representative of the Company to accompany him, and Employee and his representative shall cooperate with the Company and its representative. (f) The Company shall be responsible for all charges of the Accountants. (g) Nothing in this Section is intended to violate the Sarbanes-Oxley Act and to the extent that any advance or repayment ob▇▇▇▇▇▇▇▇ ▇▇▇▇▇nder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to Employee and the repayment obligation null and void.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 18, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and severance benefits under this Agreement or otherwise payable to Employee shall will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999 of the Code, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 18 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to a Change in Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 518, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 518. Any reduction in payments and/or benefits required by this Section 5 18 shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, cash payments; and (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or other benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are paid to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Executive. In the event that acceleration of vesting of equity-based any equity awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit reverse order of the date of grant for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Executive’s equity awards.

Limitation on Payments. In the event that the payments severance and ---------------------- other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue ------------------- Code of 1986, as amended (the “"Code”") and (ii) but for this Section, would be ---- subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and 's benefits under this Agreement or otherwise payable to Employee Sections 2 and 3 shall be either delivered payable either: (a) in full full, or (without the Company paying any portion of the Excise Tax), or delivered b) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments benefits under Sections 2 and benefits3, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 7(1) shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “"Accountants”"), whose ----------- determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 57(1), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights7(1); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 9, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments severance and other benefits under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments severance and other benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments severance and other benefits, notwithstanding that all or some portion of such payments severance and other benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 9 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to a Change of Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 59, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 59. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall 9. In the event the Accountants determine that this Section 9 requires a reduction in Executive’s severance or other benefits, the reduction will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction employee benefits; cancellation of accelerated vesting acceleration of equity-based equity awards; cancellation of equity awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are considered to be reduced, contingent upon the Change of Control transaction. If Executive fails to make an appropriate reduction shall occur in reverse chronological order such that election within the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as reasonable time period determined by the Accountants. In no event will Employee exercise any discretion with respect to Board, in its sole discretion, the ordering order of any reduction of payments or benefits pursuant to this Section 5shall be determined by the Board.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Executive (i) constitute “parachute payments” within the meaning of Section 280G of the United States Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s payments and benefits under this Agreement or otherwise payable to Employee shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee otherwise agree in writing, any Any determination required under this Section 5 section shall be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this section. All payments made under this Agreement shall be subject to reduction for all applicable federal, state, and local tax withholdings and any other required withholdings. Any reduction in payments and/or benefits required by this Section 5 Agreement shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (42) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights)equity awards; provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or and (3) are reduction of other benefits paid or provided to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Executive. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5basis.

Limitation on Payments. In the event that the payments and other benefits provided for Notwithstanding any provisions contained in this Agreement or otherwise payable to Employee the contrary, the Company shall not, and shall not be obligated to, pay any amount pursuant to this Agreement unless (i) constitute “parachute payments” within the meaning of Section 280G of Company has received funds which may be used to make such payment and which funds are not required to repay the Internal Revenue Code of 1986, as amended (the “Code”) Notes and Voluntary Advance Loans when due and (ii) would be subject after giving effect to such payment, either (x) there is sufficient liquidity availability (determined in accordance with the excise tax imposed by Section 4999 Program Documents), under all of the Code liquidity facilities for the Company's commercial paper program, to pay the Face Amount of all outstanding Notes and Voluntary Advance Loans when due or (the “Excise Tax”), then Employee’s payments y) all Notes and benefits under this Agreement or otherwise payable to Employee shall be either delivered Voluntary Advance Loans are paid in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights)full; provided, however, that the foregoing limitations on payments by the Company shall not apply to any non-taxable payments distributions of funds received by the Company pursuant to Section 4. Any amount which the Company does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in Section 101 of the Bankruptcy Code) against or benefits shall corporate obligation of the Company for any such insufficiency unless and until such payment may be reduced last made in accordance with clauses (i) and (ii) above. The agreements in this subsection (k) shall survive termination of this Agreement, the same categorical ordering rule. In the event items described in (2) or (3) are reduction to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence zero of the event triggering the Excise Tax will be the first Unrecovered Liquidity Purchase Price of all Percentage Interests and payment to be reduced of all obligations hereunder. GOVERNING LAW; JURISDICTION. THIS AGREEMENT AND EACH ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (with reductions made proWITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTION 5-rata in the event payments are owed at the same time1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)). In the event that acceleration of vesting of equityANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY ASSIGNMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT AND ANY ASSIGNMENT, EACH OF THE COMPANY, THE ADMINISTRATOR, THE LIQUIDITY AGENT AND EACH PURCHASER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-based awards is to be reducedEXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent)THE ADMINISTRATOR, as determined by the AccountantsTHE LIQUIDITY AGENT AND EACH PURCHASER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT, ANY ASSIGNMENT OR ANY DOCUMENT RELATED HERETO. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5EACH OF THE COMPANY, THE ADMINISTRATOR, THE LIQUIDITY AGENT AND EACH PURCHASER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.

Limitation on Payments. In the event that the payments and other severance benefits provided for in this Agreement or and/or other payments and benefits otherwise payable provided to Employee Executive (ia) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (iib) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (Code, then, at the “Excise Tax”)election of Executive, then EmployeeExecutive’s severance benefits under Section 3, and/or the other payments and benefits under this Agreement or otherwise payable provided to Employee shall Executive, will be either (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of severance benefits and other payments and benefits, notwithstanding that all or some portion of such severance benefits and other payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall will be made in writing by a nationally-recognized the Company’s outside legal counsel or independent public accounting accountants or other firm designated selected by agreement between Employee and the Company (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by made pursuant to this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last made in accordance with the same categorical ordering rule. In following order of priority: (A) stock options whose exercise price exceeds the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence fair market value of the event triggering the Excise Tax will be the first payment to be reduced optioned stock (with reductions made pro-rata in the event payments are owed at the same timei.e., “underwater options”). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, 1986 as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 4(a) shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, amounts taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-nationally recognized independent public “Big Four” accounting firm designated selected by agreement between Employee and the Company (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (42) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights)equity awards; provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or and (3) are reduction of other benefits paid or provided to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Employee. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant for Employee’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5basis.

Limitation on Payments. (a) In the event that the any payments and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 17, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and benefits any amounts payable under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise Tax, Code, (iii) whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. (b) If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Tax. following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards (by cutting back performance-based awards first and then time-based awards, based on reverse order of vesting dates (rather than grant dates)), if applicable; and (iii) reduction of employee benefits. (c) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 17 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated accountants or by agreement between Employee and Company such other person or entity to which the parties mutually agree (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposesCompany. For purposes of making the calculations required by this Section 517, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Firm may incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 517.

Limitation on Payments. (a) In the event that the any payments and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 15, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and any post-termination severance benefits payable under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise Tax, Code, (iii) whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. (b) If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Tax. following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards (by cutting back performance-based awards first and then time-based ​ awards, based on reverse order of vesting dates (rather than grant dates)), if applicable; and (iii) reduction of employee benefits. (c) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 15 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated accountants or by agreement between Employee and Company such other person or entity to which the parties mutually agree (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposesCompany. For purposes of making the calculations required by this Section 515, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Firm may incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 515.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Covered Person (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employeethe Covered Person’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 3(a)(i) shall be either (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee the Covered Person on an after-after tax basis basis, of the greatest amount of severance payments and benefits, notwithstanding that all or some portion of such severance payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee the Covered Person otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally-recognized the accounting firm serving the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change of Control (the “Accountants”)) in good faith consultation with the Covered Person. In the event of a reduction in benefits hereunder, whose determination such benefits shall be conclusive reduced in the following order: (a) cash payments not subject to Section 409A of the Code; (b) cash payments subject to Section 409A of the Code; (c) equity compensation; and binding upon Employee and (d) non-cash forms of benefit. To the Company for all purposesextent any payment is to be made over time, then the payment shall be reduced in reverse chronological order. . For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable the application taxes and may rely on reasonable, reasonable good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Covered Person shall furnish to the Accountants such information and documents as the Accountants may reasonably reasonable request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or 6. Remedy If Covered Person’s benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be are reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering avoid the Excise Tax will pursuant to Section 5 hereof and notwithstanding such reduction, the IRS determines that the Covered Person is liable for the Excise Tax as a result of the receipt of severance benefits from the Company, then Covered Person shall be obligated to pay to the Company (the “Repayment Obligation”) an amount of money equal to the “Repayment Amount.” The Repayment Amount shall be the first payment smallest such amount, if any, as shall be required to be reduced (with reductions made pro-rata in paid to the event payments are owed at Company so that the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion Covered Person’s net proceeds with respect to his or her severance benefits hereunder (after taking into account the ordering payment of the Excise Tax imposed on such benefits) shall be maximized. Notwithstanding the foregoing, the Repayment Amount shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax. If the Excise Tax is not eliminated through the performance of the Repayment Obligation, the Covered Person shall pay the Excise Tax. The Repayment Obligation shall be discharged within thirty (30) days of either (i) the Covered Person entering into a binding agreement with the IRS as to the amount of 6 Excise Tax liability, or (ii) a final determination by the IRS or a court decision requiring the Covered Person to pay the Excise Tax from which no appeal is available or is timely taken. 7. Successors (a) Company’s Successors Any successor to the Company (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) or to all or substantially all of the Company’s business and/or assets shall assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any reduction successor to the Company’s business and/or assets which executes and delivers the assumption agreement described in this subsection (a) which becomes bound by the terms of payments or benefits pursuant to this Section 5Agreement by operation of law.

Limitation on Payments. In the event that any of the payments and other or benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section IV.B, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employeethe Executive’s payments and or benefits under this Agreement or otherwise payable to Employee shall will be either either: 1. delivered in full (without the Company paying any portion of the Excise Tax)full, or 2. delivered as to such lesser extent which would result in no portion of such payments and or benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999 of the Code, results in the receipt by Employee the Executive on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and or benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee the Executive otherwise agree in writing, any determination required under this Section 5 shall IV.B will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants at least ten (10) days prior to the date of the Change in Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5IV.B, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall the Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction IV.B. The Company will bear all fees and costs payable to the Accountants in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) IV.B. Any reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits made pursuant to this Section IV.B shall be reduced last made in accordance with the same categorical ordering rule. In following order of priority: (i) stock options whose exercise price exceeds the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence fair market value of the event triggering the Excise Tax will be the first payment to be reduced optioned stock (with reductions made pro“Underwater Options”) (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-rata in the event payments cash Full Credit Payments that are owed at the same time). In the event taxable, (iv) non-cash Full Credit Payments that acceleration of vesting of equityare not taxable (v) Partial Credit Payments (as defined below) and (vi) non-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5cash employee welfare benefits.

Limitation on Payments. In the event that any of the payments and other or benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section IV.A, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and or benefits under this Agreement or otherwise payable to Employee shall will be either either: 1. delivered in full (without the Company paying any portion of the Excise Tax)full, or or 2. delivered as to such lesser extent which would result in no portion of such payments and or benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999 of the Code, results in the receipt by Employee Executive on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and or benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall IV.A will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants at least ten (10) days prior to the date of the Change in Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5IV.A, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction IV.A. The Company will bear all fees and costs payable to the Accountants in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) IV.A. Any reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits made pursuant to this Section IV.A shall be reduced last made in accordance with the same categorical ordering rule. In following order of priority: (i) stock options whose exercise price exceeds the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence fair market value of the event triggering the Excise Tax will be the first payment to be reduced optioned stock (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent“Underwater Options”), (ii) Full Credit Payments (as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and severance benefits under this Agreement or otherwise payable to Employee shall Section 2 will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 4 will be made in writing by a nationally-recognized the Company’s independent public accountants immediately prior to a Change in Control or a “Big Four” national accounting firm designated selected by agreement between Employee and the Company (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposespurposes in the absence of manifest error. The Accountants shall provide Executive with a written report of its determinations hereunder, including reasonably detailed supporting calculations.. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 54. Any reduction in payments and/or benefits required by this Section 5 4 shall occur in a manner necessary to provide Executive with the following order as reasonably determined by the Accountants: (1) greatest economic benefit. If more than one manner of reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits yields the greatest economic benefit, the payments and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountantspro rata. In no event will Employee Executive exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 4. sa-71146 5.

Limitation on Payments. In the event that the payments and other severance benefits provided for in this Agreement or and/or other payments and benefits otherwise payable provided to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employeethen, , Executive’s payments and severance benefits under this Agreement or Section 3, and/or any other parachute payments otherwise payable provided to Employee shall Executive, will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of severance benefits and other payments and benefits, notwithstanding that all or some portion of such severance benefits and other payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall will be made in writing by a nationally-recognized the Company’s outside legal counsel or independent public accounting accountants or other firm designated selected by agreement between Employee and the Company (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by made pursuant to this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last made in accordance with the same categorical ordering rulefollowing order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”) (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In the event items described in (2) or (3) are to each case, reductions shall be reduced, reduction shall occur made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax excise tax will be the first payment or benefit to be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In the event that the payments and other severance benefits (the "Benefits") provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any corresponding provisions of state income tax law), then the Employee’s payments and benefits 's Benefits under this Agreement or otherwise payable to Employee Section 3 shall be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits Benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis tax-basis, of the greatest greater amount of payments and benefitsBenefits, notwithstanding that all or some portion of such payments and benefits Benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 4 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reducedsubsection (a) above applies, such acceleration of vesting then Employee shall be cancelled in a manner such as to obtain the best economic benefit responsible for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion excise taxes imposed with respect to such severance and other benefits. In the ordering event that subsection (b) above applies, then each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid imposition of any reduction of payments or benefits pursuant to this Section 5such excise taxes.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Executive (i) constitute “parachute payments” within the meaning of Section 280G of the United States Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and Executive's benefits under this Agreement or otherwise payable to Employee shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee otherwise agree in writing, any Any determination required under this Section 5 section shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this section. All payments made under this Agreement shall be subject to reduction for all applicable federal, state, and local tax withholdings and any other required withholdings. Any reduction in payments and/or benefits required by this Section 5 Agreement shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (42) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights)equity awards; provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or and (3) are reduction of other benefits paid or provided to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Executive. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall be cancelled canceled in the reverse order of the date of grant for Executive's equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5basis.

Limitation on Payments. In If the event that the payments and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “a "parachute payments” payment(s)" within the meaning of Section SECTION 280G of the Internal Revenue Code of 1986, as amended (the “Code”"CODE") and (ii) but for this Section, would be subject to the excise tax imposed by Section SECTION 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and 's severance benefits under this Agreement or otherwise payable to Employee SECTION 2 shall be either delivered payable either: (a) in full full; or (without the Company paying any portion of the Excise Tax), or delivered b) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under SECTION 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by SECTION 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments and benefitsseverance benefits under SECTION 4(a) hereof, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under SECTION 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section SECTION 5 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “"Accountants”"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section SECTION 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section SECTIONS 280G and AND 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section SECTION 5.

Limitation on Payments. In the event that any of the payments and other or benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section IV.A, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and or benefits under this Agreement or otherwise payable to Employee shall will be either either: 1. delivered in full (without the Company paying any portion of the Excise Tax)full, or 2. delivered as to such lesser extent which would result in no portion of such payments and or benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999 of the Code, results in the receipt by Employee Executive on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and or benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall IV.A will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants at least ten (10) days prior to the date of the Change in Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5IV.A, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction IV.A. The Company will bear all fees and costs payable to the Accountants in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) IV.A. Any reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits made pursuant to this Section IV.A shall be reduced last made in accordance with the same categorical ordering rule. In following order of priority: (i) stock options whose exercise price exceeds the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence fair market value of the event triggering the Excise Tax will be the first payment to be reduced optioned stock (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent“Underwater Options”), (ii) Full Credit Payments (as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits.

Limitation on Payments. (a) In the event that Employee shall become entitled to the payments and other and/or benefits provided for in by Section 10(c) or any other amounts (whether pursuant to the terms of this Agreement or otherwise payable to Employee (iany other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") or any person affiliated with the Company or such person) as a result of a Change of Control (collectively the "Company Payments"), and (ii) would such Company Payments will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed) the “Company shall pay to Employee at the time specified in subsection (d) below an additional amount (the "Gross-up Payment") such that the net amount retained by Employee, after deduction of any Excise Tax”Tax on the Company Payments and any federal, state, and local income or payroll tax upon the Gross-up Payment provided for by this paragraph (a), but before deduction for any federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. Notwithstanding the foregoing provisions of this Section 11 to the contrary, if it shall be determined that Employee is entitled to a Gross-up Payment, but the Company Payments do not exceed one hundred five percent (105%) of the greatest amount that could be paid to Employee such that the receipt of Company Payments would not give rise to any Excise Tax (the "Reduced Amount"), then Employee’s payments and benefits under this Agreement or otherwise payable no Gross-up Payment shall be made to Employee and the Company Payments, in the aggregate, shall be either delivered in full reduced to the Reduced Amount. (without b) For purposes of determining whether any of the Company paying any portion Payments and Gross-up Payments (collectively the "Total Payments") will be subject to the Excise Tax and determining the amount of such Excise Tax: (i) the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Excise Tax)Code, or delivered and all "parachute payments" in excess of the "base amount" (as to such lesser extent which would result in no portion defined under Code Section 280G(b)(3) of such payments and benefits being the Code) shall be treated as subject to the Excise Tax, whichever unless and except to the extent that, in the opinion of the foregoing amountsCompany's independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by such accountants (the "Accountants") such Total Payments (in whole or in part), taking (A) do not constitute "parachute payments," (B) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code" or (C) are otherwise not subject to the Excise Tax; and (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Gross-up Payment, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee's residence for the calendar year in which the Company Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the applicable time the Gross-up Payment is made, Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal, state and local income taxes tax imposed on the portion of the Gross-up Payment being repaid by Employee if such repayment results in a reduction in Excise Tax or a federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any portion of the Gross-up Payment to be refunded to the Company has been paid to any federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to Employee, and interest payable to the Company shall not exceed the interest received or credited to Employee by such tax authority for the period it held such portion. Employee and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if Employee's claim for refund or credit is denied. In the event that the Excise Tax, results in Tax is later determined by the receipt Accountants or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-up Payment is made (including by Employee on an after-tax basis reason of any payment the existence or amount of which cannot be determined at the time of the greatest Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of payments and benefits, notwithstanding that all such excess is finally determined. (d) The Gross-up Payment or some portion of such payments and benefits may subject thereof provided for in subsection (c) above shall be paid not later than the thirtieth (30th) day following an event occurring which sub jects Employee to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any nonif the amount of such Gross-taxable up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Employee on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments or benefits and shall pay the remainder of such payments (together with interest at the rate provided in Code Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to subsection (c) hereof, as soon as the amount thereof can reasonably be reduced last determined, but in accordance with no event later than the same categorical ordering rule. In the event items described in ninetieth (290th) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following day after the occurrence of the event triggering subjecting Employee to the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Tax. In the event that acceleration the amount of vesting of equity-based awards is the estimated payments exceeds the amount subsequently determined to be reducedhave been due, such acceleration of vesting excess shall be cancelled in constitute a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined loan by the Accountants. Company to Employee, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (e) In no the event will Employee exercise any discretion with respect to the ordering of any reduction of payments controversy with the Internal Revenue Service (or benefits pursuant other taxing authority) under this Section 11, Employee shall permit the Company to control issues related to this Section 511 (at its expense), provided that such issues do not potentially materially adversely affect Employee, but Employee shall control any other issues. In the event the issues are interrelated, Employee and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree, Employee shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, Employee shall permit the representative of the Company to accompany him, and Employee and his representative shall cooperate with the Company and its representative. (f) The Company shall be responsible for all charges of the Accountants.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee You (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this Section 6D, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments Your severance and other benefits under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments severance and other benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee You on an after-tax basis basis, of the greatest amount of payments severance and other benefits, notwithstanding that all or some portion of such payments severance and other benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee You otherwise agree in writing, any determination required under this Section 5 shall 6D will be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to Change of Control (the “"Accountants”"), whose determination shall will be conclusive and binding upon Employee You and the Company for all purposes. For purposes of making the calculations required by this Section 56D, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall You will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur 6D. In the event the Accountants determine that this Section 6D requires a reduction in Your severance or other benefits, You will be provided the following reasonable opportunity to determine the order as reasonably in which severance and other benefits will be reduced. If You fail to make an appropriate reduction election within the reasonable time period determined by the Accountants: (1) Board, in its sole discretion, the order of reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Board.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 8, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments Executive's severance and other benefits under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments severance and other benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments severance and other benefits, notwithstanding that all or some portion of such payments severance and other benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 8 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to a Change of Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 58, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 58. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall 8. In the event the Accountants determine that this Section 8 requires a reduction in Executive's severance or other benefits, the reduction will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction employee benefits; cancellation of accelerated vesting acceleration of equity-based equity awards; cancellation of equity awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are considered to be reduced, contingent upon the Change of Control transaction. If Executive fails to make an appropriate reduction shall occur in reverse chronological order such that election within the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as reasonable time period determined by the Accountants. In no event will Employee exercise any discretion with respect to Board, in its sole discretion, the ordering order of any reduction of payments or benefits pursuant to this Section 5shall be determined by the Board.

Limitation on Payments. In the event that the payments and other separation benefits (the “Benefits”) provided for in this Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any corresponding provisions of state income tax law), then the Employee’s payments and benefits Benefits under this Agreement or otherwise payable to Employee Section 3 shall be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits Benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis tax-basis, of the greatest greater amount of payments and benefitsBenefits, notwithstanding that all or some portion of such payments and benefits Benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 4 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reducedsubsection (a) above applies, such acceleration of vesting then Employee shall be cancelled in a manner such as to obtain the best economic benefit responsible for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion excise taxes imposed with respect to such severance and other benefits. In the ordering event that subsection (b) above applies, then each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid imposition of any reduction of payments or benefits pursuant to this Section 5such excise taxes.

Limitation on Payments. (a) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or any successor tax accountants to the payments and other benefits provided Company (the "Auditors") determine that any payment or distribution by the Company to or for in the benefit of the Executive, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within a "Payment"), would be nondeductible by the meaning Company for federal income tax purposes because of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”"), then Employee’s payments and benefits under the aggregate present value of the amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement or otherwise payable to Employee (the "Agreement Payments") shall be either delivered in full reduced (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject but not below zero) to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposesReduced Amount. For purposes of making the calculations required by this Section 59, the Accountants "Reduced Amount shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) If the Auditors determine that any Payment would be nondeductible by the Company because of section 280G of the Code, then the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation (hereof and of the Reduced Amount, and the Executive may make reasonable assumptions then elect, in his sole discretion, which and approximations concerning applicable taxes how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall advise the Company in writing of his election within 10 days of his receipt of notice. If no such election is made by the Executive within such 10-day period, then the Company may rely on reasonableelect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 9, good faith interpretations concerning present value shall be determined in accordance with section 280G(d)(4) of the Code. All determinations made by the Auditors under this Section 9 shall be binding upon the Company and the Executive and shall be made within 60 days of the Executive's termination of employment. As promptly as practicable following such determination and the elections hereunder, the Company shall pay to or distribute to or for the benefit of the Executive such amounts as are then due to him under this Agreement and shall promptly pay to or distribute for the benefit of the Executive in the future such amounts as become due to him under this Agreement. (c) As a result of the uncertainty in the application of Section 280G and 4999 of the Code at the time of the initial determination by the Auditors hereunder, it is possible that Agreement Payments will have been made by the Company which should not have been made (an "Overpayment") or that additional Agreement Payments which will not have been made by the Company could have been made (an "Underpayment"), consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Auditors, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive which the Auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Executive which he shall repay to the Company, together with interest at the applicable federal rate provided for in section 7872 (f) (2) of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits no amount shall be reduced last in accordance with payable by the same categorical ordering rule. In Executive to the event items described in (2) or (3) are Company if and to be reduced, reduction shall occur in reverse chronological order the extent that such that payment would not reduce the payment or benefit owed on the latest date following the occurrence amount which is subject to taxation under Section 4999 of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Code. In the event that acceleration of vesting of equity-the Auditors, based awards is to be reducedupon controlling precedent, determine that an Underpayment has occurred, such acceleration of vesting Underpayment shall promptly be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined paid by the Accountants. In no event will Employee exercise any discretion Company to or for the benefit of the Executive, together with respect to interest at the ordering applicable federal rate provided for in section 7872 (f) (2) (A) of any reduction of payments or benefits pursuant to this Section 5the Code.

Limitation on Payments. In If any payment or benefit Executive will or may receive from the event that the payments and other benefits provided for in this Agreement Company or otherwise payable to Employee (a “280G Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable any such 280G Payment (a “Payment”) shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment (after reduction) being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of amount (i.e., the foregoing amountsamount determined by clause (x) or by clause (y)), after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Executive’s receipt, on an after-tax basis basis, of the greatest amount of payments and benefits, greater economic benefit notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless If a reduction in a Payment is required pursuant to the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee preceding sentence and the Company for all purposes. For purposes Reduced Amount is determined pursuant to clause (x) of making the calculations required by this Section 5preceding sentence, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by manner (the Accountants: (1“Reduction Method”) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata results in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best greatest economic benefit for Employee (with reductions made pro-rata if economically equivalent)Executive. If more than one method of reduction will result in the same economic benefit, as determined the items so reduced will be reduced pro rata. Unless Executive and the Company agree on an alternative accounting firm or law firm, the accounting firm engaged by the AccountantsCompany for general tax compliance purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. In no event will Employee exercise any discretion If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting or law firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the ordering of any reduction of payments determinations by such accounting or benefits law firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting or law firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to Executive and the Company within 15 calendar days after the date on which Executive’s right to a 280G Payment becomes reasonably likely to occur (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company. If Executive receives a Payment for which the Reduced Amount was determined pursuant to this clause (x) of Section 58(a) and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of Section 8(a) so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) of Section 8(a), Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, or any corresponding provisions of state or local tax laws, then the Employee’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 3(a) shall be either either: (a) delivered in full full, or (without the Company paying b) delivered with an additional payment in an amount such that after payment by Employee of all taxes (including, but not limited to, any portion of the Excise Tax)income taxes, or delivered employment taxes, excise taxes and any interest and penalties imposed with to any such taxes) as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 4 shall be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to Change of Control (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination dertermination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In the event that it is determined by the payments and other benefits provided for in this Agreement or otherwise Accounting Firm that any amount payable to Employee (i) you under this Agreement, alone or when aggregated with any other amount payable or benefit provided to you pursuant to any other plan or arrangement of the Company, would constitute an “excess parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code Code, then notwithstanding the other provisions of 1986this Agreement, the amounts payable will not exceed the amount which produces the greatest after-tax benefit to you. For purposes of the foregoing, the greatest after-tax benefit will be determined within thirty (30) days of the occurrence of the event giving rise to such payment to you. The Company shall request a determination in writing by the Accounting Firm of whether the full amount of the payments to you, or a lesser amount, will result in the greatest after-tax benefit to you. As soon as amended (practicable thereafter, the “Code”) Accounting Firm shall determine and (ii) would be subject report to the excise tax imposed by Section 4999 of Company and you the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion amount of such payments and benefits being subject to which would produce the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an greatest after-tax basis of benefit to you. For the greatest amount of payments and benefits, notwithstanding that all or some portion purposes of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5determination, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Accounting Firm may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee you shall furnish to the Accountants Accounting Firm such information and documents as the Accountants Accounting Firm may reasonably request in order to make their required determination. The Company shall bear all fees and expenses the Accounting Firm may reasonably charge in connection with its services contemplated by this Section. If a determination under this Section 5. Any reduced amount of the payments will give rise to the greatest after tax benefit, the reduction in the payments and/or and benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2i) reduction of cash payments; (3ii) cancellation of accelerated vesting of equity awards (including Performance Awards) other than stock options; (iii) cancellation of accelerated vesting of stock options; and (iv) reduction of non-cash/non-equity-based other benefits paid to you. Within any such category of payments or and benefits and (4) reduction of vesting acceleration of equity-based awards that is, (other than “out-of-the-money” stock options or stock appreciation rightsi); provided, however(ii), that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2iii) or (3) are to be reducediv)), a reduction shall occur in reverse chronological order such first with respect to amounts that are not “deferred compensation” within the payment or benefit owed on the latest date following the occurrence meaning of the event triggering the Excise Tax will be the first payment Code Section 409A and then with respect to be reduced (with reductions made pro-rata in the event payments are owed at the same time)amounts that are. In the event that acceleration of vesting of equity-based compensation from your equity awards (including Performance Awards) is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent)canceled, as determined by the Accountants. In no event will Employee exercise any discretion with respect subject to the ordering immediately preceding sentence, in the reverse order of any reduction the date of payments or benefits pursuant to this Section 5grant.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then Employee’s payments and Executive's benefits under this Agreement or otherwise payable to Employee shall be either (a) delivered in full (without the Company paying any portion of the Excise Tax)full, or (b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. The payments or benefits subject to any such reduction shall be reduced by Vitesse in its reasonable discretion in the following order: (i) reduction of any payments and benefits may subject otherwise payable to Executive that are exempt from Section 409A of the Excise TaxCode, and (ii) reduction of any other payments and benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by Vitesse. Unless the Company Vitesse and Employee Executive otherwise agree in writing, any determination required under this Section 5 section shall be made in writing by a nationally-recognized Vitesse's independent public accounting firm designated by agreement between Employee and Company accountants (the “"Accountants”"), whose determination shall be conclusive and binding upon Employee Executive and the Company Vitesse for all purposes. For purposes of making the calculations required by this Section 5section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company Vitesse and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5section. Any reduction Vitesse shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5section.

Limitation on Payments. In the event that the payments and other stock acceleration benefits (the "Benefits") provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any corresponding provisions of state income tax law), then the Employee’s payments and benefits 's Benefits under this Agreement or otherwise payable to Employee Section 3 shall be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits Benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis tax-basis, of the greatest greater amount of payments and benefitsBenefits, notwithstanding that all or some portion of such payments and benefits Benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 4 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reducedsubsection (a) above applies, such acceleration of vesting then Employee shall be cancelled in a manner such as to obtain the best economic benefit responsible for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion excise taxes imposed with respect to such severance and other benefits. In the ordering event that subsection (b) above applies, then each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid imposition of any reduction of payments or benefits pursuant to this Section 5such excise taxes.

Limitation on Payments. In the event that the payments and other benefits provided for (i) Anything in this Agreement to the contrary notwithstanding, in the event it will be determined that any payments or otherwise payable distributions by the Company to or for the benefit of the Employee (iwhether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) constitute “parachute payments” within (collectively, the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii"Payments") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or 1986 (the “Excise Tax”"Code"), then Employee’s payments and benefits under this Agreement or otherwise payable such Payments to the Employee shall will be either delivered in full (without reduced to the Company paying any portion of the Excise Tax), or delivered largest amount as to such lesser extent which would will result in no portion of such payments and benefits Payments being subject to the Excise Tax, whichever excise tax being imposed by Section 4999 of the foregoing amountsCode; provided, taking into account the applicable federalhowever, state and local income taxes and the Excise Tax, results that such Payments shall only be reduced if such reduction would result in the receipt by Employee receiving a greater net benefit, on an after-tax basis (including after payment of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this excise tax imposed by Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and ), than the Employee shall furnish would have received had such reduction not occurred. (ii) Subject to the Accountants such information and documents as provisions of Section 7(d)(iv), the Accountants may reasonably request in order calculation required to make a determination be made under this Section 5. Any reduction 7, and the assumptions to be used in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined arriving at such calculation, must be made by the Accountants: Company's external auditors (1the "Accounting Firm"), which must provide detailed supporting calculations both to the Company and the Employee within fifteen (15) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence business days of the event triggering receipt of notice from the Excise Tax will be Employee that there has been a Payment, or such earlier time as is requested by the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Company. In the event that acceleration the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of vesting Control, the Employee must appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the "Accounting Firm" hereunder). All fees and expenses of equity-based awards is to the Accounting Firm will be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined borne solely by the AccountantsCompany. In no event Any determination by the Accounting Firm will Employee exercise any discretion with respect to be binding upon the ordering of any reduction of payments or benefits pursuant to this Section 5Company and the Employee.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would will be subject to the excise tax imposed by Section 4999 of the Code Code, then the Employee shall receive (i) a payment from the Company sufficient to pay such excise tax (the “Excise TaxCompany Portion”), then Employee’s payments and benefits under this Agreement (ii) an additional payment from the Company sufficient to pay any Section 280G excise taxes, federal income taxes or otherwise payable to Employee shall be either delivered in full state income taxes (without collectively “Taxes”) arising from the Company paying any portion the Company Portion to the Employee pursuant to subsection (i) above and the additional payment pursuant to this subsection (ii). The intent of subsection (ii) above is to "gross-up" the amount of the Excise Tax), or delivered Company Portion such that any Taxes that arise as to such lesser extent which would a result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account Company paying either (a) the applicable federal, state and local income taxes and Company Portion or (b) any Taxes on the Excise Tax, results in the receipt by Employee on an after-tax basis Company Portion (including Taxes that arise as a result of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to Company paying Taxes) will be paid by the Excise TaxCompany. Unless the Company and the Employee otherwise agree in writing, any the determination of the Employee’s excise tax liability and the amount required to be paid under this Section 5 Agreement shall be made reasonably and in good faith and in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposespurposes (in the event the Accountants are unavailable to perform the calculations, the Employee and the Company shall mutually agree on a certified public accounting firm to perform the calculations). For purposes of making the calculations required by this Section 5Section, the Accountants may make reasonable reasonable, good faith assumptions and approximations concerning applicable taxes Taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section. To the extent that the Employee is not subject to Section 5 shall occur in the following order as reasonably determined 280G by the Accountants: (1) reduction reason of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of being a non-cash/nonUS taxpayer, but is subject to a foreign tax provision substantially similar to Section 280G, the gross-equity-based payments or benefits and (4) reduction up provisions of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 54 shall apply to such foreign provision.

Limitation on Payments. In If any Severance Benefits or any other of the event that the payments and other benefits provided for Total Severance Benefits (as defined in this Agreement or otherwise payable to Employee (iSection) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the ““ Excise TaxTax ”), then EmployeeExecutive’s payments and benefits under Section 7.2 of this Agreement or otherwise payable to Employee shall be either delivered (i) paid in full (without the Company paying any portion of the Excise Tax)full, or delivered (ii) paid as to such lesser extent which would result in no portion of such payments and or benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and payroll taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefitsTotal Severance Benefits, notwithstanding that all or some portion of such payments and benefits may be subject to the Excise TaxTax under Section 4999 of the Code, and further notwithstanding the fact that the Severance Benefits may be reduced to zero after the application of this Section. Unless For purposes of this Agreement, “ Total Severance Benefits ” means the Company severance payments and Employee benefits under Section 7.2 of this Agreement and all other payments and benefits received or to be received by Executive under this Agreement and all payments and benefits (if any) to which Executive may be entitled under any plan, agreement or otherwise agree upon or as the result of a Change of Control or the termination of his employment with Company, or both. This Section is not intended to prevent and shall not result in writingthe prevention of the acceleration and full vesting of any outstanding stock option, restricted stock or stock appreciation right held by Executive if any such acceleration is provided for under the terms of the award or grant agreement related to such stock option, restricted stock or stock appreciation right. Any determination required under this Section 5 shall be made in writing by a nationally-recognized Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants“ Accountants ”), whose determination shall be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Section.

Limitation on Payments. In the event that any of the payments and other or benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 4.6, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employeethe Executive’s payments and or benefits under this Agreement or otherwise payable to Employee shall will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and or benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999 of the Code, results in the receipt by Employee the Executive on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and or benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee the Executive otherwise agree in writing, any determination required under this Section 5 shall 4.6 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change of Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 54.6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall the Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 54.6. The Company will bear all fees and costs payable to the Accountants in connection with any calculations contemplated by this Section 4.6. Any reduction in payments and/or benefits required by this Section 5 4.6 shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rightscash payments, (2) reduction of cash payments; equity acceleration (full-value awards first, then stock options), and (3) reduction of non-cash/non-equity-based payments or other benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with paid to the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Executive. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such the reverse order of the date of grant of the equity awards.” e. Section 13. Section 13 of the Agreement is hereby amended to read in its entirety as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.follows:

Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the payments and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Employee (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee such Payment shall either be either (x) delivered in full (without the Company paying any portion of the Excise Tax)full, or (y) delivered as to such lesser extent which would result in no portion of such payments and benefits Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefitslargest payment, notwithstanding that all or some portion of such payments and benefits the Payment may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required be taxable under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish A determination as to whether the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits Payment shall be reduced last in accordance with pursuant to this Agreement and the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, amount of such reduction shall occur in reverse chronological order such that be made by the payment Company’s independent public accountants or benefit owed on another certified public accounting firm or executive compensation consulting firm of national reputation designated by the latest date following Company (the occurrence “Firm”) at the Company’s expense. The Firm shall provide its determination (the “Determination”), together with detailed supporting calculations and documentation to the Company and Executive within fifteen (15) calendar days of the event triggering date of termination of Executive’s employment, if applicable, or such other time as reasonably requested by the Company or Executive, and if the Firm determines that no Excise Tax is payable by Executive with respect to any Payment, it shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion imposed with respect to any such Payment. Unless Executive provides written notice to the ordering Company within fifteen (15) calendar days of the delivery of the Determination to Executive that Executive disputes such Determination, the Determination shall be binding, final and conclusive upon the Company and Executive. Unless Executive elects a different order of reduction, any such election to be consistent with the requirements of Section 409A of the Code, to the extent that a reduction of in payments or benefits is required pursuant to this Section 59(b), the Company shall reduce or eliminate amounts which are payable first from any cash severance and cash bonuses, then from any payment in respect of an equity award that is not covered by Treas. Reg. Section 1.280G-1 Q/A-24(b) or (c), then from any payment in respect of an equity award that is covered by Treas. Reg. Section 1.280G-1 Q/A-24(c), in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined below). Any election given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing Executive’s rights and entitlements to any benefits or compensation.

Limitation on Payments. In the event that the payments termination and other benefits provided for in this Agreement (the "Benefits") or otherwise payable to Employee the Executive (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this Section 9(f) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and benefits the Benefits under this Agreement or otherwise payable to Employee Section 9 shall be payable either delivered (A) in full (without the Company paying any portion of the Excise Tax)full, or delivered (B) as to such lesser extent amount which would result in no portion of such payments and benefits the Benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee the Executive on an after-tax basis basis, of the greatest amount of payments and benefitsthe Benefits, notwithstanding that all or some portion of such payments and benefits Benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required be taxable under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The If a reduction in the Benefits is necessary to comply with the provisions of the preceding paragraph, the Executive shall be entitled to select which Benefits will be reduced and the manner and method of any such reduction of such Benefits. Within 30 days after the amount of any required reduction in Benefits is finally determined in accordance with the provisions of this Section 9(f), the Executive shall notify the Company and Employee shall furnish the Accounting Firm in writing regarding which Benefits are to be reduced. If no notification is given by the Accountants such information and documents Executive, the Company will determine which Benefits to reduce. If, as the Accountants may reasonably request in order to make a determination under this Section 5. Any result of any reduction in payments and/or benefits required by this Section 5 9(f), amounts previously paid to the Executive exceed the amount to which the Employee is entitled, the Employee will promptly return the excess amount to the Company. Any determination (the "Determination") with respect to this Section 9(f) shall occur in be made at the following order as reasonably determined Company's expense by an accounting firm selected by the Accountants: Company (1) reduction the "Accounting Firm"). The Accounting Firm shall provide its Determination that amounts otherwise payable would be subject to Section 4999, together with detailed supporting calculations and documentation to the Company and Executive within 15 days of vesting acceleration the effective date of “out-of-the-money” stock options Executive's termination of employment by the Company if applicable, or stock appreciation rightssuch other time as requested by the Company or by Executive. The Accounting Firm shall provide any other Determination requested within 10 days. Within 10 days of the delivery of a Determination to Executive, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits Executive shall have the right to dispute the Determination and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits such dispute shall be reduced last resolved in accordance with Section 17 of this Agreement. Upon the same categorical ordering ruleresolution of a dispute under Section 17, the Company shall promptly pay to Executive or the Executive shall pay to the Company, any amount required by such resolution and such resolution shall be binding, final and conclusive upon the Company and Executive. In If there is no dispute, the event items described in (2) or (3) are to Determination shall be reducedbinding, reduction final and conclusive upon the Company and Executive. Nothing herein shall occur in reverse chronological order such that limit the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata parties' respective rights in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reducedan applicable government taxing authority or a court, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (final, nonappealable order or decision, takes a position which is inconsistent with reductions made proa non-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering disputed Determination or a final and conclusive resolution of any reduction of payments or benefits pursuant to this Section 5a disputed Determination.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to Employee the Executive (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this Section 11, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and the Executive's benefits under this Agreement or otherwise payable to Employee hereunder shall be either either (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which which, or at such later time as, would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee the Executive on an after-after tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and benefits may subject to (or might otherwise) be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee the Executive otherwise agree in writing, any determination required under this Section 5 11 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “"Accountants”"), whose determination shall be conclusive and binding upon Employee the Executive and the Company for all purposes; provided that if benefits are reduced or deferred, the Executive shall choose the order in which such benefits are reduced or deferred. For purposes of making the calculations required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 511.

Limitation on Payments. In the event that the payments and other severance benefits provided for in this Agreement or and/or other payments and benefits otherwise payable provided to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (Code, then, at the “Excise Tax”)election of Executive, then EmployeeExecutive’s severance benefits under Section 3, and/or the other payments and benefits under this Agreement or otherwise payable provided to Employee shall Executive, will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of severance benefits and other payments and benefits, notwithstanding that all or some portion of such severance benefits and other payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall will be made in writing by a nationally-recognized the Company’s outside legal counsel or independent public accounting accountants or other firm designated selected by agreement between Employee and the Company (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by made pursuant to this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last made in accordance with the same categorical ordering rulefollowing order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”) (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable (iv) non-cash Full Credit Payments that are not taxable (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In the event items described in (2) or (3) are to each case, reductions shall be reduced, reduction shall occur made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax excise tax will be the first payment or benefit to be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or and/or other payments and benefits otherwise payable provided to Employee (i) you constitute “parachute payments” within the meaning of Code Section 280G of the Internal Revenue Code of 1986and, as amended (the “Code”) and (ii) but for this Section 6(f), would be subject to the excise tax imposed by Code Section 4999 of then, at your election, your severance benefits under this Section 6 and the Code (the “Excise Tax”), then Employee’s other payments and benefits under this Agreement or otherwise payable provided to Employee shall you, will be either delivered in full (without the Company paying any portion of the Excise Tax)full, or delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Taxexcise tax under Code Section 4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Code Section 4999, results in the receipt by Employee you on an after-tax basis basis, of the greatest amount of such payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Taxbe taxable under Code Section 4999. Unless you and the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall 6(f) will be made in writing by a nationally-recognized the Company’s outside legal counsel or independent public accounting accountants or other firm designated selected by agreement between Employee and the Company (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee you and the Company for all purposes. For purposes of making the calculations required by this Section 56(f), the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Code Sections 280G and 4999 of 4999. You and the Code. The Company and Employee shall will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 56(f). Any reduction in payments and/or benefits required by made pursuant to this Section 5 shall occur in the following order as reasonably determined by the Accountants: (16(f) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last made in accordance with the same categorical ordering rulefollowing order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”) (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In the event items described in (2) or (3) are to each case, reductions shall be reduced, reduction shall occur made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax excise tax will be the first payment or benefit to be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). In For purposes of this Agreement, a “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, that if reduced in value by one dollar reduces the amount of the parachute payment (as defined in Code Section 280G) by one dollar, determined as if such payment, distribution or benefit had been paid or distributed on the date of the event triggering the excise tax. For purposes of this Agreement, a “Partial Credit Payment” means any payment, distribution or benefit that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in not a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the AccountantsFull Credit Payment. In no event will Employee exercise shall you have any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5payment reductions.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any corresponding provisions of state income tax law), then Employee’s payments and severance benefits under this Agreement Section 3(a) or otherwise payable to Employee (b) shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee on an after-tax basis tax-basis, of the greatest greater amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 4 shall be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 54. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reducedsubsection (a) above applies, such acceleration of vesting then Employee shall be cancelled in a manner such as to obtain the best economic benefit responsible for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion excise taxes imposed with respect to such severance and other benefits. In the ordering event that subsection (b) above applies, then each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid imposition of any reduction of payments or benefits pursuant to this Section 5such excise taxes.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any corresponding provisions of state income tax law), then the Employee’s payments and 's severance benefits under this Agreement or otherwise payable to Employee Section 3(a) shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis tax-basis, of the greatest greater amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accounts (the “"Accountants”"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)5. In the event that acceleration of vesting of equity-based awards is to be reducedsubsection (a) above applies, such acceleration of vesting then Employee shall be cancelled in a manner such as to obtain the best economic benefit responsible for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion excise taxes imposed with respect to such severance and other benefits. In the ordering event that subsection (b) above applies, then each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid imposition of any reduction of payments or benefits pursuant to this Section 5such excise taxes.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or and/or other payments and benefits otherwise payable provided to Employee (i) you constitute “parachute payments” within the meaning of Code Section 280G of the Internal Revenue Code of 1986and, as amended (the “Code”) and (ii) but for this Section 6(f), would be subject to the excise tax imposed by Code Section 4999 of then, at your election, your severance benefits under this Section 6 and the Code (the “Excise Tax”), then Employee’s other payments and benefits under this Agreement or otherwise payable provided to Employee shall you, will be either delivered in full (without the Company paying any portion of the Excise Tax)full, or delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Taxexcise tax under Code Section 4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Code Section 4999, results in the receipt by Employee you on an after-tax basis basis, of the greatest amount of such payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Taxbe taxable under Code Section 4999. Unless you and the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall 6(f) will be made in writing by a nationally-recognized the Company’s outside legal counsel or independent public accounting accountants or other firm designated selected by agreement between Employee and the Company (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee you and the Company for all purposes. For purposes of making the calculations required by this Section 56(f), the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Code Sections 280G and 4999 of 4999. You and the Code. The Company and Employee shall will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 56(f). Any reduction in payments and/or benefits required by made pursuant to this Section 5 shall occur in the following order as reasonably determined by the Accountants: (16(f) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last made in accordance with the same categorical ordering rulefollowing order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”) (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable (v) Partial Credit Payments (as defined below) and (vi) non- cash employee welfare benefits. In the event items described in (2) or (3) are to each case, reductions shall be reduced, reduction shall occur made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax excise tax will be the first payment or benefit to be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). In For purposes of this Agreement, a “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, that if reduced in value by one dollar reduces the amount of the parachute payment (as defined in Code Section 280G) by one dollar, determined as if such payment, distribution or benefit had been paid or distributed on the date of the event triggering the excise tax. For purposes of this Agreement, a “Partial Credit Payment” means any payment, distribution or benefit that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in not a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the AccountantsFull Credit Payment. In no event will Employee exercise shall you have any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5payment reductions.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 6, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments severance and other benefits under this Agreement or otherwise payable to Employee shall Sections 3 and 4 will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 6 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change in Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 56, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall 6. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, the cash severance payments; (2) reduction cancellation of cash paymentsaccelerated vesting of equity awards; and (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)continued employee benefits. In the event that acceleration of the accelerated vesting of equity-based equity awards is to be reducedcancelled, such vesting acceleration of vesting shall will be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by reverse chronological order of the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Executive’s equity awards’ grant dates.