Common use of Section 280G Clause in Contracts

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

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

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

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

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

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

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

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to (a) In the contrary, if any of the payments or benefits provided or to be provided by event that the Company undergoes a “change in ownership or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise control” (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and wouldthe regulations and guidance promulgated thereunder (“Section 280G”)) and all, but or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the “Total Payments”), could constitute an “excess parachute payment” within the meaning of Section 280G, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion of the Total Payments shall be non-deductible for this US federal income taxes by reason of Section 3.3(c280G (the “Limited Amount”), or (ii) be subject if the amount of the Total Payments (without regard to clause (i)) reduced by the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”)) and the amount of all other applicable federal, then state and local taxes (with income taxes all computed at the following shall apply: (ihighest applicable marginal rate) If is greater than the Covered Payments, Limited Amount reduced by the sum amount of all taxes applicable thereto (1) with income taxes all computed at the Excise Tax and (2) the total of the Federalhighest marginal rate), state, and local income and employment taxes payable by Employee on the amount of the Covered Total Payments which are in excess of three times otherwise payable without regard to clause (i). If it is determined that the Limited Amount will maximize the Employee’s after-tax proceeds, the Total Payments shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, (iii) third, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, with all such reductions done on a pro rata basis. (b) All determinations made pursuant this Section 14 will be made at the Company’s or its Affiliates’ expense by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by the Company for such purpose (the “base amountIndependent Advisors”). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a “parachute payment” within the meaning of Section 280(G280G(b)(2) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (iiincluding by reason of Section 280G(b)(4)(A) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the FederalCode) or (z) constitutes reasonable compensation for services actually rendered, state, and local income and employment taxes on within the amount meaning of Section 280G(b)(4)(B) of the Covered Payments which are Code, in excess of the Threshold Amount, then “base amount” (as defined in Section 280G(b)(3) of the Covered Payments shall be reduced (but not below zeroCode) allocable to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amountsuch reasonable compensation. In such event, the Covered Payments shall be reduced in the following order: event it is later determined that (A) cash payments not subject a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 409A; 14, the excess amount shall be returned immediately by the Executive to the Company or (B) cash payments subject a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To 14, the extent any payment is to be made over time (e.g., in installments, etc.), then the payments additional amount shall be reduced in reverse chronological order. The determination as to which paid immediately by the Company, or any Affiliate of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”)Company, which shall provide detailed supporting calculations both as applicable, to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

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

Section 280G. Notwithstanding In the event that it is determined that any other provisions payment or distribution in the nature of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided compensation made or to be provided made of any type to or for the benefit of Executive made by the Company, by any of its affiliates, by any person who acquires ownership or effective control of the Company or its affiliates to Employee ownership of a substantial portion of the Company’s assets (within the meaning of section 280G of the Code, and the regulations thereunder or for Employee’s benefit by any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or under any other agreement with or plan of the Company otherwise (the “Covered Total Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would), but for this Section 3.3(c) would be subject Executive to the excise tax imposed under Section by section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes excise tax (collectivelysuch excise tax, together with any such interest or penalties, are collectively referred to as the “Excise Tax”), then the following either clauses (a) or (b) below shall applyapply or occur, as applicable: (ia) If the Covered Paymentsaggregate present value of the Total Payments (as calculated pursuant to the Code Section 280G final regulations) is less than 325% of Executive’s Base Amount, reduced by then such Total Payments shall be reduced, as necessary, to the smaller amount that is equal to $1.00 less than 300% of Executive’s Base Amount so as to eliminate imposition of the Excise Tax. (b) If the aggregate present value of the Total Payments (as calculated pursuant to the Code Section 280G final regulations) is equal to or greater than 325% of Executive’s Base Amount, then, the Company shall pay Executive a cash amount equal to the sum of of: (1i) any excise taxes that may be imposed on Executive under Code Sections 280G and 4999 (the “Excise Tax Restoration”) and (ii) for any taxes (including excise taxes) that may be imposed on the Excise Tax and (2) the total of the Federal, stateRestoration payment, and local income and employment for any interest or penalties related to such excise tax with all such computations performed applying the then highest marginal tax rates (excluding Federal social security taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employeegiven Executive’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not compensation will likely exceed the Threshold Amount. In social security limit for such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments year and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income federal taxes which could that may be obtained from the deduction of such state and local taxes). Such payment shall be made to Executive contemporaneously with the withholding of the Excise Tax from Executive within thirty days of the determination that there are excise taxes owed and will be in an amount so that Executive will be in the same position on an after-tax basis that he would have been if no excise taxes, interest and/or penalties had been imposed. (c) All mathematical determinations and all determinations of whether any of the Total Payments are “parachute payments” and/or are potentially subject to the Excise Tax (within the meaning of section 280G of the Code) that are required to be made under this Section 13, shall be made by an independent nationally recognized independent registered public accounting firm not currently retained by the Company and reasonably acceptable by Executive immediately prior to the Change in Control (the “Accountants”), who shall provide their determination, together with detailed supporting calculations regarding the amount of any relevant matters, both to the Company and to Executive within seven (7) business days of the Change in Control or Termination Date, as applicable, or such earlier time as is requested by the Company. Such determination shall be made by the Accountants using reasonable good faith interpretations of the Code. Any determination by the Accounting Firm Accountants shall be binding upon the Company and EmployeeExecutive, absent manifest error. The Company shall pay the fees and costs of the Accountants that are incurred in connection with this Section 13.

Section 280G. (i) Notwithstanding any other provisions provision of this Agreement, except as set forth in Section 9(b)(ii), in the event that the Company undergoes a “Change in Ownership or Control” (as defined below), the Company shall not be obligated to provide to Executive a portion of any other plan, arrangement or agreement “Contingent Compensation Payments” (as defined below) that Executive would otherwise be entitled to receive to the contrary, if extent necessary to eliminate any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “excess parachute payments” within (as defined in Section 280G(b)(1) of the meaning Code) for Executive. For purposes of this Section 9(b), the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Payments” and the aggregate amount (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Amount.” (ii) Notwithstanding the provisions of Section 280G 9(b)(i), no such reduction in Contingent Compensation Payments shall be made if (i) the Eliminated Amount (computed without regard to this sentence) exceeds (ii) 100% of the Code aggregate present value (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-31 and wouldQ/A-32 or any successor provisions) of the amount of any additional taxes that would be incurred by Executive if the Eliminated Payments (determined without regard to this sentence) were paid to Executive (including, but for this Section 3.3(c) be subject to state and federal income taxes on the Eliminated Payments, the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties payable with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total all of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Contingent Compensation Payments which are in excess of three times EmployeeExecutive’s “base amount” within the meaning of (as defined in Section 280(G280G(b)(3) of the Code less one dollar (the “Threshold Amount”Code), are greater than and any withholding taxes). The override of such reduction in Contingent Compensation Payments pursuant to this Section 9(b)(ii) shall be referred to as a “Section 9(b)(ii) Override.” For purposes of this paragraph, if any federal or equal state income taxes would be attributable to the Threshold Amountreceipt of any Eliminated Payment, Employee the amount of such taxes shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced computed by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on multiplying the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected Eliminated Payment by the Company maximum combined federal and state income tax rate provided by law. (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. iii) For purposes of determining which of this Section 9(b) the alternative provisions of Section 3.3(c)(ii) following terms shall apply, Employee shall be deemed to pay Federal income taxes at have the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.following respective meanings:

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

Section 280G. (A) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if (i) any of the payments or benefits provided or to be provided by the Company or its affiliates ChannelAdvisor to Employee You or for Employee’s Your benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision theretoprovision) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then and (ii) the following shall apply: (i) If aggregate present value of the Covered Payments, parachute payments reduced by the sum of (1) the Excise Tax and would be less than three (23) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s Your “base amount” within the meaning of as defined in Section 280(G280G(b)(3) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold AmountCode, then the Covered Payments shall be reduced (but not below zero) to the minimum extent necessary so to ensure that no portion of the sum Covered Payments is subject to the Excise Tax. (B) Any such reduction shall be made by in accordance with Section 409A of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; (i) all other Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall then be reduced in the following order: as follows: (A) cash payments not subject to Section 409Ashall be reduced before non-cash payments; and (B) cash payments subject to Section 409Abe made on a later payment date shall be reduced before payments to be made on an earlier payment date; and (ii) in the event that accelerated vesting of Awards is to be reduced, such acceleration will be cancelled in the reverse order of the dates on which the Awards were granted. (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which You shall provide detailed supporting calculations both ChannelAdvisor with such information and documents as ChannelAdvisor may reasonably request in order to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of make a determination under this Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee4.

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

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

Section 280G. Notwithstanding any other provisions of anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that any of the payments payment or benefits provided benefit received or to be provided received by the Company Executive (including any payment or its affiliates to Employee benefit received in connection with a Change of Control or for Employeethe termination of Executive’s benefit employment, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “Covered Total Payments”) constitute would not be deductible (in whole or part) by the Company as a result of Section 280G of the Internal Revenue Code of 1986, as amended (the “parachute payments” within Code”), then, to the meaning extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any such other plan, arrangement or agreement), the portion of the Total Payments that do not constitute deferred compensation within the meaning of Section 409A of the Code shall first be reduced (if necessary, to zero), and wouldall other Total Payments shall thereafter be reduced (if necessary, to zero), with cash payments being reduced before non-cash payments, and payments to be paid last being reduced first; provided, however, that such reduction shall only be made if the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to the amount of such Total Payments without such reduction (but for this Section 3.3(c) be subject to after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect on such unreduced Total Payments). It is possible that, after the determinations and selections made pursuant to such taxes (collectivelythis Section 23, the Executive will receive Total Payments that are, in the aggregate, either more or less than the amount properly determined under this Section 23 (hereafter referred to as an “Excise TaxExcess Payment” or “Underpayment”, as applicable). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then Executive shall promptly repay the following shall apply: (i) If Excess Payment to the Covered PaymentsCompany, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee together with interest on the amount of Excess Payment at the Covered Payments which are applicable federal rate (as defined in excess of three times Employee’s “base amount” within the meaning of Section 280(G1274(d) of the Code less one dollar (Code) from the “Threshold Amount”)date of Executive’s receipt of such Excess Payment until the date of such repayment. In the event that it is determined by a court or by the accounting firm which was, are greater than or immediately prior to the Change in Control, the Company's independent auditor, upon request of either party, that an Underpayment has occurred, the Company shall promptly pay an amount equal to the Threshold AmountUnderpayment to Executive (but in any event within ten (10) days of such determination), Employee shall be entitled together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the full benefits payable under this Agreement; and (ii) If Executive had the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of this Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of 23 not been applied until the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeepayment.

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

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

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

Section 280G. Notwithstanding any other provisions provision of this Agreement, letter or any other plan, arrangement or agreement to the contrary, if any of in the event that: (a) the aggregate payments or benefits provided or to be provided by the Company or its affiliates to Employee you or for Employee’s your benefit pursuant to the terms of this Agreement letter or otherwise (“Covered Payments”) constitute that are deemed to be “parachute payments” within the meaning of Section 280G of the Code or any successor thereto (“Change of Control Benefits”) would be deemed to include an “excess parachute payment” under Section 280G of the Code (or any successor provision thereto); and (b) if such Change of Control Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three (3) times your “base amount,” as determined in accordance with Section 280G of the Code or (any successor provision thereto); and (i) the Non-Triggering Amount less the product of the aggregate marginal rate of any applicable federal, state and would, but for this Section 3.3(clocal income taxes times the Non-Triggering Amount would be greater than (ii) the aggregate value of the Change of Control Benefits (without such reduction) minus (x) the aggregate amount of tax required to be subject to the excise tax imposed under paid by you thereon by Section 4999 of the Code (or any successor provision thereto) or and any similar excise tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and further minus (y) the total product of the FederalChange of Control Benefits times the aggregate marginal rate of any applicable federal, state, state and local income and employment taxes on taxes; then (d) the amount Change of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments Control Benefits shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Non-Triggering Amount. In such event, the Covered Aggregate Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A409A of the Code; (B) cash payments subject to Section 409A409A of the Code; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

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

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

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

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

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

Section 280G. Notwithstanding A. To the extent that any other provisions payment, benefit or distribution of this Agreement, any type to or for Executive’s benefit by the Company or any other planof its affiliates, arrangement whether paid or agreement to the contrarypayable, if any of the payments or benefits provided or to be provided by the Company provided, or its affiliates to Employee distributed or for Employee’s benefit distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other equity-based awards) (collectively, the “Covered Total Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) would be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise TaxCode”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Total Payments shall be reduced (but not below zero) to the extent necessary so that the sum maximum amount of all Covered the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to be subject to the excise tax imposed by Section 4999 of the Code, but only if the Total Payments so reduced result in Executive receiving a net after tax amount that exceeds the net after tax amount Executive would receive if the Total Payments were not exceed reduced and were instead subject to the Threshold Amountexcise tax imposed on excess parachute payments by Section 4999 of the Code. In Unless Executive shall have given prior written notice to the Company to effectuate a reduction in the Total Payments if such eventa reduction is required, any such notice consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Covered Company shall reduce or eliminate the Total Payments shall be reduced in by first reducing or eliminating any cash severance benefits (with the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., furthest in installments, etc.the future being reduced first), then by reducing or eliminating any accelerated vesting of stock options or similar awards, then by reducing or eliminating any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. The preceding provisions of this Section shall take precedence over the payments shall be provisions of any other plan, arrangement or agreement governing Executive’s rights and entitlements to any benefits or compensation. B. If the Total Payments to Executive are reduced in reverse chronological order. The determination accordance with Section 12(A), as to which a result of the alternative provisions uncertainty in the application of Section 3.3(c)(ii) shall apply 4999 of the Code at the time of the initial reduction under Section 12(A), it is possible that Total Payments to Employee shall be Executive which will not have been made by a nationally recognized accounting firm selected by the Company should have been made (the “Accounting FirmUnderpayment”) or that Total Payments to Executive which were made should not have been made (“Overpayment”). If an Underpayment has occurred, which the amount of any such Underpayment shall provide detailed supporting calculations both be promptly paid by the Company to or for the benefit of Executive. In the event of an Overpayment, then Executive shall promptly repay to the Company and Employee within 15 business days the amount of any such Overpayment together with interest on such amount (at the same rate as is applied to determine the present value of payments under Section 280G of the date of terminationCode or any successor thereto), if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on from the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination reimbursable payment was received by Executive to the Accounting Firm shall be binding upon date the Company and Employeesame is repaid to the Company.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if (a) If any of the payments or benefits provided received or to be provided received by the Company Executive (including, without limitation, any payments or its affiliates to Employee or for Employeebenefits received in connection with a Change in Control including payments that could be made on the Executive’s benefit termination of employment following a Change in Control, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement, or agreement, or otherwise) (all such payments collectively referred to herein as the “Covered 280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) will be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following 280G Payments shall apply: be either: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum present value of all Covered such total 280G Payments shall not exceed received by Executive will be one dollar ($1.00) less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Threshold AmountCode) and so that no portion of such 280G Payments will be subject to the excise tax imposed by Section 4999 of the Code, or (ii) paid in full, whichever of ‎(i) or ‎(ii) produces the better net after tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). In If a reduction in such event280G Payments is to be made pursuant to this section, the Covered 280G Payments shall be reduced in the following order: (A) any portion of the cash payments severance payable hereunder that is not subject to “nonqualified deferred compensation” for purposes of Code Section 409A; (B) cash payments subject to Section 409Aany benefits continuation valued as parachute payments; (C) equity-based payments and accelerationany accelerated vesting of any equity awards; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which portion of the alternative provisions cash severance payable hereunder and any other cash amounts that are “nonqualified deferred compensation” for purposes of Code Section 3.3(c)(ii409A. (b) shall apply to Employee All calculations and determinations under this Section ‎7.07 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel”), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive for all purposes. For purposes of determining which making the calculations and determinations required by this Section ‎7.07, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and Employeethe Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section ‎7.07. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if (a) If any of the payments or benefits provided received or to be provided received by the Company Executive (including, without limitation, any payments or its affiliates to Employee or for Employeebenefits received in connection with a Change in Control including payments that could be made on the Executive’s benefit termination of employment following a Change in Control, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement, or agreement, or otherwise) (all such payments collectively referred to herein as the “Covered 280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) will be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered 280G Payments shall be either: (a) reduced (but not below zero) to the extent necessary so that the sum present value of all Covered such total 280G Payments shall not exceed received by Executive will be one dollar ($1.00) less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Threshold AmountCode) and so that no portion of such 280G Payments will be subject to the excise tax imposed by Section 4999 of the Code, or (b) paid in full, whichever of (a) or (b) produces the better net after tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). In If a reduction in such event280G Payments is to be made pursuant to this section, the Covered 280G Payments shall be reduced in the following order: (Ai) any portion of the cash payments severance payable hereunder that is not subject to “nonqualified deferred compensation” for purposes of Code Section 409A; (Bii) cash payments subject to Section 409Aany benefits continuation valued as parachute payments; (Ciii) equity-based payments and accelerationany accelerated vesting of any equity awards; and (Div) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which portion of the alternative provisions cash severance payable hereunder and any other cash amounts that are “nonqualified deferred compensation” for purposes of Code Section 3.3(c)(ii409A. (b) shall apply to Employee All calculations and determinations under this Section 7.07 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel”), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive for all purposes. For purposes of determining which making the calculations and determinations required by this Section 7.07, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and Employeethe Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 7.07. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

Section 280G. [add for each Participant with an Employment Agreement containing a 280G section (usually entitled “Limitation on Payment” and usually around Section 8 or 9 of the Employment Agreement): Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement anything herein to the contrary, if any the Section of the Employment Agreement entitled [“Limitation on Payments”][section title to be confirmed/ updated as appropriate each time a PRSU is awarded] shall apply to this Award. If the Employment Agreement is amended or restated, any successor provision to the “Limitation on Payments” section shall apply. [add for each Participant who does NOT have an Employment Agreement or whose employment agreement does NOT contain a 280G section (usually entitled “Limitation on Payment”): Notwithstanding anything herein to the contrary, in the event that the Performance Units or vesting thereof provided for in this Award Agreement or any severance, change in control-related, or other payments or benefits provided or otherwise payable to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise Participant (“Covered Payments”i) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and would, (ii) but for this Section 3.3(c) 10, would be subject to the excise tax imposed by Section 4999 of the Code, then such payments or benefits will be either: (a) delivered in full, or 5. (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code (or any successor provision thereto) or any similar Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by state or local law or any interest or penalties with respect to such taxes (collectivelySection 4999, results in the “Excise Tax”)receipt by Participant on an after-tax basis, then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the greatest amount of the Covered Payments which are severance or change in excess control-related, Performance Units or other payments or benefits, notwithstanding that all or some portion of three times Employee’s “base amount” within the meaning of such payments or benefits may be taxable under Section 280(G) 4999 of the Code less one dollar (the Code. If a reduction in severance, Performance Units and/or other payments or benefits constituting “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount parachute payments” is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such eventpayments or benefits are delivered to a lesser extent, the Covered Payments shall be reduced reduction will occur in the following order: (Ai) reduction of cash payments not subject payments, which will occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to Section 409Abe reduced; (Bii) cash payments subject to Section 409A; reduction of acceleration of vesting of equity awards, which will occur in the reverse order of the date of grant for such stock awards (C) equity-based payments and accelerationi.e., the vesting of the most recently granted stock awards will be reduced first); and (Diii) non-cash forms reduction of benefits. To the extent any payment is other benefits paid or provided to be made over time (e.g.Participant, in installments, etc.), then the payments shall be reduced which will occur in reverse chronological order. The determination as to which order such that the benefit owed on the latest date following the occurrence of the alternative provisions event triggering such excise tax will be the first benefit to be reduced. If more than one equity award was made to Participant on the same date of grant, all such awards will have their acceleration of vesting reduced pro rata. In no event will Participant have any discretion with respect to the ordering of payment reductions. Unless the Company and Participant otherwise agree in writing, any determination required under this Section 3.3(c)(ii) shall apply to Employee shall will be made in writing by a nationally recognized accounting firm of independent public accountants selected by the Company (the “Accounting FirmAccountants”), which shall provide detailed supporting calculations both to whose determination will be conclusive and binding upon Participant and the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeefor all purposes. For purposes of determining which making the calculations required by this Section 10, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and EmployeeParticipant 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 10.

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

Section 280G. [add for each Participant with an Employment Agreement containing a 280G section (usually entitled “Limitation on Payment” and usually around Section 8 or 9 of the Employment Agreement): Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement anything herein to the contrary, if any the Section of the Employment Agreement entitled [“Limitation on Payments”][section title to be confirmed/ updated as appropriate each time a PRSU is awarded] shall apply to this Award. If the Employment Agreement is amended or restated, any successor provision to the “Limitation on Payments” section shall apply. [add for each Participant who does NOT have an Employment Agreement or whose employment agreement does NOT contain a 280G section (usually entitled “Limitation on Payment”): Notwithstanding anything herein to the contrary, in the event that the Performance Units or vesting thereof provided for in this Award Agreement or any severance, change in control-related, or other payments or benefits provided or otherwise payable to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise Participant (“Covered Payments”i) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and would, (ii) but for this Section 3.3(c) 9, would be subject to the excise tax imposed by Section 4999 of the Code, then such payments or benefits will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code (or any successor provision thereto) or any similar Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by state or local law or any interest or penalties with respect to such taxes (collectivelySection 4999, results in the “Excise Tax”)receipt by Participant on an after-tax basis, then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the greatest amount of the Covered Payments which are severance or change in excess control-related, Performance Units or other payments or benefits, notwithstanding that all or some portion of three times Employee’s “base amount” within the meaning of such payments or benefits may be taxable under Section 280(G) 4999 of the Code less one dollar (the Code. If a reduction in severance, Performance Units and/or other payments or benefits constituting “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount parachute payments” is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such eventpayments or benefits are delivered to a lesser extent, the Covered Payments shall be reduced reduction will occur in the following order: (Ai) reduction of cash payments not subject payments, which will occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to Section 409Abe reduced; (Bii) cash payments subject to Section 409A; reduction of acceleration of vesting of equity awards, which will occur in the reverse order of the date of grant for such stock awards (C) equity-based payments and accelerationi.e., the vesting of the most recently granted stock awards will be reduced first); and (Diii) non-cash forms reduction of benefits. To the extent any payment is other benefits paid or provided to be made over time (e.g.Participant, in installments, etc.), then the payments shall be reduced which will occur in reverse chronological order. The determination as to which order such that the benefit owed on the latest date following the occurrence of the alternative provisions event triggering such excise tax will be the first benefit to be reduced. If more than one equity award was made to Participant on the same date of grant, all such awards will have their acceleration of vesting reduced pro rata. In no event will Participant have any discretion with respect to the ordering of payment reductions. Unless the Company and Participant otherwise agree in writing, any determination required under this Section 3.3(c)(ii) shall apply to Employee shall will be made in writing by a nationally recognized accounting firm of independent public accountants selected by the Company (the “Accounting FirmAccountants”), which shall provide detailed supporting calculations both to whose determination will be conclusive and binding upon Participant and the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeefor all purposes. For purposes of determining which making the calculations required by this Section 9, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and Employee.Participant will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this

Section 280G. Notwithstanding any other provisions of anything to the contrary contained in this Agreement, to the extent that any amount, equity awards or benefits paid or distributed to you pursuant to this Agreement or any other planagreement, plan or arrangement or agreement to between the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee subsidiaries or for Employee’s benefit pursuant to affiliates, on the terms of this Agreement or otherwise one hand, and you on the other hand (collectively, the “Covered 280G Payments”) (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code and would, (ii) but for this Section 3.3(c) provision would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following 280G Payments shall apply: be payable either (iA) If the Covered Paymentsin full, reduced by the sum notwithstanding that some or all portion of (1) such payment may be subject to the Excise Tax and or (2B) the total in such lesser amount that would result in no portion of such 280G Payments being subject to Excise Tax, whichever of the Federalforegoing amounts, statetaking into account the applicable federal, state and local income and employment or excise taxes payable by Employee (including the Excise Tax) results in your receipt on an after-tax basis, of the greatest amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full payments and benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum notwithstanding that all or some portion of (x) the Excise Tax such payments and (y) the total benefits may be taxable under Section 4999 of the FederalCode. Subject to Section 11(q), state, and local income and employment taxes on in the amount of the Covered Payments which are event a reduction in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) a 280G Payment is required pursuant to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such eventpreceding sentence, the Covered Payments payments shall be reduced in the following order: (A1) cash payments not subject to Section 409Apayments; (B2) cash payments subject any equity awards accelerated or otherwise valued at full value, provided such equity awards are not permitted to be valued under Treasury Regulations Section 409A1.280G-1 Q/A — 24(c); (C3) equity-based payments acceleration of vesting of all other stock options and accelerationequity awards; and (D4) any other non-cash forms of benefits, and (5) within any category, reductions shall be from the last due payment to the first. To the extent any payment is All determinations required to be made over time (e.g., in installments, etc.under this Section 11(r), then including whether you will receive a full payment or a reduced payment and the payments shall assumptions to be reduced utilized in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee arriving at such determination, shall be made by a nationally recognized certified public accounting firm selected as may be designated by the Company Employer and reasonably acceptable to you (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations both to the Company Employer and Employee you within 15 fifteen (15) business days of the date receipt of termination, if applicable, notice from the Employer that there is or at may be made a 280G Payment or such earlier other time as is reasonably requested by you or the Company or EmployeeEmployer. For purposes of determining which All fees and expenses of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee Accounting Firm shall be deemed to pay Federal income taxes at borne solely by the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesEmployer. Any determination by the Accounting Firm shall be binding upon the Company Employer and Employeeyou.

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

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

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

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

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to (a) In the contrary, if any of the payments or benefits provided or to be provided by event that the Company undergoes a "change in ownership or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise control" (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and wouldthe regulations and guidance promulgated thereunder ("Section 280G")) and all, but or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the "Total Payments"), could constitute an "excess parachute payment" within the meaning of Section 280G, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion of the Total Payments shall be non-deductible for this US federal income taxes by reason of Section 3.3(c280G (the "Limited Amount"), or (ii) be subject if the amount of the Total Payments (without regard to clause (i)) reduced by the excise tax imposed under by Section 4999 of the Code (or any successor provision theretothe "Excise Tax") or any similar tax imposed by and the amount of all other applicable federal, state or and local law or any interest or penalties with respect to such taxes (collectively, with income taxes all computed at the “Excise Tax”), then highest applicable marginal rate) is greater than the following shall apply: (i) If the Covered Payments, Limited Amount reduced by the sum amount of all taxes applicable thereto (1) with income taxes all computed at the Excise Tax and (2) the total of the Federalhighest marginal rate), state, and local income and employment taxes payable by Employee on the amount of the Covered Total Payments which are in excess of three times otherwise payable without regard to clause (i). If it is determined that the Limited Amount will maximize the Employee’s “base amount” within 's after-tax proceeds, the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Total Payments shall be reduced (but not below zero) to equal the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced Limited Amount in the following order: (Ai) first, by reducing cash severance payments that are exempt from Section 409A, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, (iii) third, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A; , in each case, with all such reductions done on a pro rata basis. (Bb) cash payments subject to All determinations made pursuant this Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to 14 will be made over time (e.g., at the Company's or its Affiliates' expense by an accounting firm or consulting group with experience in installments, etc.), then performing calculations regarding the payments shall be reduced in reverse chronological order. The determination as to which applicability of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm Code selected by the Company for such purpose (the “Accounting Firm”"Independent Advisors"), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which such determinations, no portion of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee Total Payments shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be madetaken into account which, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality opinion of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeits legal advisors, (y) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the excess amount shall be returned immediately by the Executive to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the additional amount shall be paid immediately by the Company, or any Affiliate of the Company, as applicable, to the Executive.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to (a) In the contrary, if any of the payments or benefits provided or to be provided by event that the Company undergoes a “change in ownership or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise control” (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and wouldthe regulations and guidance promulgated thereunder (“Section 280G”)) and all, but or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the “Total Payments”), could constitute an “excess parachute payment” within the meaning of Section 280G, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion of the Total Payments shall be non-deductible for this US federal income taxes by reason of Section 3.3(c280G (the “Limited Amount”), or (ii) be subject if the amount of the Total Payments (without regard to clause (i)) reduced by the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”)) and the amount of all other applicable federal, then state and local taxes (with income taxes all computed at the following shall apply: (ihighest applicable marginal rate) If is greater than the Covered Payments, Limited Amount reduced by the sum amount of all taxes applicable thereto (1) with income taxes all computed at the Excise Tax and (2) the total of the Federalhighest marginal rate), state, and local income and employment taxes payable by Employee on the amount of the Covered Total Payments otherwise payable without regard to clause (i). If it is determined that the Limited Amount will maximize the Employee's after-tax proceeds, the Total Payments shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section l.280G-1 of the Treasury Regulations does not apply, (iii) third, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in excess each case, with all such reductions done on a pro rata basis. (b) All determinations made pursuant this Section 14 will be made prior to the “change in ownership or control” at the Company's or its Affiliates' expense by an accounting firm or consulting group selected by or on behalf of three times Employee’s the Company with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by the Company for such purpose (the “base amountIndependent Advisors”). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a “parachute payment” within the meaning of Section 280(G280G(b)(2) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (iiincluding by reason of Section 280G(b)(4)(A) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the FederalCode) or (z) constitutes reasonable compensation for services actually rendered, state, and local income and employment taxes on within the amount meaning of Section 280G(b)(4)(B) of the Covered Payments which are Code, in excess of the Threshold Amount, then “base amount” (as defined in Section 280G(b)(3) of the Covered Payments shall be reduced (but not below zeroCode) allocable to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amountsuch reasonable compensation. In such event, the Covered Payments shall be reduced in the following order: event it is later determined that (A) cash payments not subject a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 409A; 14, the excess amount shall be returned immediately by the Executive to the Company or (B) cash payments subject a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To 14, the extent any payment is to be made over time (e.g., in installments, etc.), then the payments additional amount shall be reduced in reverse chronological order. The determination as to which paid immediately by the Company, or any Affiliate of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”)Company, which shall provide detailed supporting calculations both as applicable, to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Section 280G. (a) Notwithstanding any other provisions of anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that any of the payments payment or benefits provided benefit received or to be provided received by Executive (including any payment or benefit received in connection with a “Change in Control” (as defined above) or the Company or its affiliates to Employee or for Employeetermination of Executive’s benefit employment, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “Covered Total Payments”) constitute would not be deductible (in whole or part) by the Company or any Affiliates making such payment or providing such benefit as a result of Section 280G of the Code, or subject the Executive to excise taxes under Section 4999 of the Code, then, to the extent necessary to make such portion of the Total Payments deductible or ensure that no portion of any payment or benefit be considered an “excess parachute paymentspayment” within under Section 280G of the meaning Code (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), the portion of the Total Payments that do not constitute deferred compensation within the meaning of Section 409A of the Code shall first be reduced (if necessary, to zero), and wouldall other Total Payments shall thereafter be reduced (if necessary, to zero), with cash payments being reduced before non-cash payments, and payments to be paid last being reduced first; provided, however, that such reduction shall only be made if (i) the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (ii) the amount of such Total Payments without such reduction (but for this Section 3.3(c) be subject to after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”) on such unreduced Total Payments). (b) It is possible that, after the determinations and selections made pursuant to Section 7(a) above, Executive will receive 280G Benefits that are, in the aggregate, either more or less than the amount determined under Section 7(a) above (hereafter referred to as an “Excess Payment” or “Underpayment”, as applicable). If it is established, pursuant to a final determination of an arbitrator pursuant to Section 9(k), or an Internal Revenue Service proceeding, and any appeal therefrom, that has been finally and conclusively resolved, that an Excess Payment has been made, then Executive shall promptly repay the following shall apply: Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in Section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. In the event that it is determined (i) If the Covered Paymentsby arbitration pursuant to Section 9(k), reduced or (ii) by the sum accounting firm which was, immediately prior to the Change in Control, the Company’s independent auditor, upon request of (1) either party, that an Underpayment has occurred, the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the Company shall promptly pay an amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold AmountUnderpayment to Executive (but in any event within ten (10) days of such determination), Employee shall be entitled together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the full benefits payable under this Agreement; and (ii) If Executive had the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii7(a) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of not been applied until the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeepayment.

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

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

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

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

Section 280G. (a) Notwithstanding any other provisions of anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if any of the payments payment or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit distribution Executive would receive pursuant to the terms of this Agreement or otherwise (“Covered PaymentsPayment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code Code, and would, (ii) but for this Section 3.3(c) sentence, be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following Company shall apply: (i) If the Covered Paymentscause to be determined, reduced by the sum of (1) the Excise Tax and (2) the total before any amounts of the FederalPayment are paid to Executive, state, and local income and employment taxes payable by Employee on the amount which of the Covered Payments which are in excess following alternative forms of three times Employeepayment would maximize Executive’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following orderafter-tax proceeds: (A) cash payments not subject to Section 409A; payment in full of the entire amount of the Payment (a “Full Payment”), or (B) cash payments payment of only a part of the Payment so that Executive receives that largest Payment possible without being subject to Section 409A; the Excise Tax (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting FirmReduced Payment”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days whichever of the date of terminationforegoing amounts, if applicabletaking into account the applicable federal, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes and the Excise Tax (all computed at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of terminationrate, net of the maximum reduction in Federal federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment, notwithstanding that all or some portion the Payment may be subject to the Excise Tax. (b) If a Reduced Payment is made pursuant to this Section 27, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits payable to Executive. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting shall be canceled in the reverse order of the date of grant. (c) The independent registered public accounting firm engaged by the Company as of the day prior to the effective date of the Change of Control shall make all determinations required to be made under this Section 27. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the Change of Control, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. (d) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company. If the independent registered public accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment. Any determination by good faith determinations of the Accounting Firm accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeExecutive.”

Section 280G. Notwithstanding any other provisions provision of this Agreement, or any other plan, arrangement or agreement to the contrary, if any payment or benefit the Executive would receive pursuant to a Change of the payments Control or benefits otherwise (whether paid, payable or provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise otherwise) (each a “Covered Payment” and collectively the “Payments”) could constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code and wouldCode, but for this Section 3.3(cthen the Payments shall be either (a) reduced such that the maximum amount of the Payments shall be One Dollar ($1.00) less than the amount that would cause the Payments to be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then or (b) delivered in full pursuant to the following shall apply: terms of this Agreement. The determination of whether clause (ia) If the Covered Payments, reduced by the sum of or (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(Gb) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee preceding sentence shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee given effect shall be made by a nationally recognized the Company on the basis of which of such clauses results in the receipt by the Executive of the greater Net After-Tax Receipt (as defined herein) of the aggregate Payments. The term “Net After-Tax Receipt” shall mean the present value (as determined in accordance with Section 280G of the Code) of the Payments net of all applicable federal, state and local income, employment and other applicable taxes and the Excise Tax. If clause (b) above is given effect and the Payments are reduced, such reduction shall be accomplished by first reducing or eliminating the portion of the Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Payments, in each case in reverse order beginning with payments and benefits which are to be paid or provided the furthest in time from the date of the determination described below and in each case in accordance with Section 409A. Unless the Company and the Executive otherwise agree in writing, any determination required under this paragraph shall be made by the independent public accounting firm selected by serving as the Company Company’s auditing firm (the “Accounting FirmThird Party”), which and all such determinations shall provide detailed supporting calculations both be conclusive, final and binding on the parties hereto. The Company and the Executive shall furnish to the Third Party such information and documents as the Third Party may reasonably request in order to make a determination under this Section 11. The Company shall bear all fees and Employee within 15 business days costs of the date of termination, if applicable, Third Party with respect to all determinations under or at such earlier time as is reasonably requested contemplated by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeethis paragraph.

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

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

Section 280G. Notwithstanding any other provisions (a) Payments under this Agreement shall be made without regard to whether the deductibility of this Agreement, such payments (or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments,” within as that term is defined in Section 280G of the meaning Code, to or for the benefit of the Executive) would be limited or precluded by Section 280G of the Code and would, but for this Section 3.3(cwithout regard to whether such payments (or any other “parachute payments” as so defined) be would subject the Executive to the federal excise tax imposed levied on certain “excess parachute payments” under Section 4999 of the Code; provided, that if the total of all payments to or for the benefit of the Executive, after reduction for all federal taxes (including the tax described in Section 4999 of the Code, if applicable, with respect to such payments) (the “Executive’s total after tax payments”), would be increased by the limitation or elimination of any payment under this Agreement or otherwise, then such amounts payable hereunder or otherwise shall be reduced to the extent, and only to the extent, necessary to maximize the Executive’s total after tax payments. For the avoidance of doubt, in no event shall the Executive be entitled to any tax gross-up payment with respect to any federal excise tax levied under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply:payment or provision of any excess parachute payments. (ib) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(iiwhether and to what extent payments under this Agreement or otherwise are required to be reduced in accordance with subsection (a) shall apply to Employee above shall be made by a nationally recognized accounting firm selected at the Company’s expense by the Company Accountants. In the event that any payments under this Agreement or otherwise are required to be reduced as described in this Section 12, the adjustment will be made, first, by reducing the cash payments, if any, due to the Executive pursuant to Sections 5(d)(ii)(A) and (the “Accounting Firm”B), which shall provide detailed supporting calculations both 5(g)(i)(B)(I) and (II) or 5(g)(ii)(A) and (B), as applicable; second, if additional reductions are necessary, by reducing the benefits due to the Company Executive under Section 5(d)(ii)(C), 5(g)(i)(B)(III), or 5(g)(ii)(C), as applicable; and Employee within 15 business days third, if additional reductions are still necessary, by eliminating the accelerated vesting of equity-based awards, starting with those awards for which the amount required to be taken into account under the Section 280G rules is the greatest. In the event that there has been any underpayment or overpayment under this Agreement or otherwise as determined by the Accountants, the amount of such underpayment or overpayment shall forthwith be paid to the Executive or refunded to the Company, as the case may be, with interest at the applicable federal rate provided for in Section 7872(f)(2) of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. Code. (c) For purposes of determining which of this Section 12, the alternative provisions of Section 3.3(c)(ii) shall applyterm “Accountants” means the independent public accounting firm most recently serving as the Company’s outside auditors prior to the Change in Control, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of or such state and local taxes. Any determination by the Accounting Firm shall be binding upon other accounting or benefits consulting firm as the Company and Employeemay designate prior to a Change in Control.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if (a) If any of the payments or benefits provided received or to be provided received by the Company Executive (including, without limitation, any payments or its affiliates to Employee or for Employeebenefits received in connection with a Change in Control including payments that could be made on the Executive’s benefit termination of employment following a Change in Control, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement, or agreement, or otherwise) (all such payments collectively referred to herein as the “Covered 280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) will be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered 280G Payments shall be either: (a) reduced (but not below zero) to the extent necessary so that the sum present value of all Covered such total 280G Payments shall not exceed received by Executive will be one dollar ($1.00) less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Threshold AmountCode) and so that no portion of such 280G Payments will be subject to the excise tax imposed by Section 4999 of the Code, or (b) paid in full, whichever of (a) or (b) produces the better net after tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). In If a reduction in such event280G Payments is to be made pursuant to this section, the Covered 280G Payments shall be reduced in the following order: (Ai) any portion of the cash payments severance payable hereunder that is not subject to “nonqualified deferred compensation” for purposes of Code Section 409A; (Bii) cash payments subject to Section 409Aany benefits continuation valued as parachute payments; (Ciii) equity-based payments and accelerationany accelerated vesting of any equity awards; and (Div) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which portion of the alternative provisions cash severance payable hereunder and any other cash amounts that are “nonqualified deferred compensation” for purposes of Code Section 3.3(c)(ii409A. (b) shall apply to Employee All calculations and determinations under this Section ‎7.07 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel”), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive for all purposes. For purposes of determining which making the calculations and determinations required by this Section ‎7.07, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and Employeethe Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section ‎7.07. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

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

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

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 21 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of three times Employee’s the Covered Payments is subject to the Excise Tax. “base amountNet Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 6 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. Notwithstanding any other provisions of (a) Anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrarycontrary notwithstanding, if in the event that the amount of any of the payments compensation, payment or benefits provided or to be provided distribution by the Company or its affiliates to Employee or for Employee’s benefit your benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of otherwise, calculated in a manner consistent with Section 280G of the Code Code, and wouldthe applicable regulations thereunder (the “Aggregate Payments”), but for this Section 3.3(c) would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”)Code, then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Aggregate Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered of the Aggregate Payments shall be $1.00 less than the amount at which you become subject to the excise tax imposed by Section 4999 of the Code; provided that such reduction shall only occur if it would result in you receiving a higher After Tax Amount (as defined below) than you would receive if the Aggregate Payments were not exceed the Threshold Amountsubject to such reduction. In such event, the Covered Aggregate Payments shall be reduced in the following order, in each case, in reverse chronological order beginning with the Aggregate Payments that are to be paid the furthest in time from consummation of the transaction that is subject to Section 280G of the Code: (A1) cash payments not subject to Section 409A409A of the Code; (B2) cash payments subject to Section 409A409A of the Code; (C3) equity-based payments and acceleration; and (D4) non-cash forms of benefits; provided that in the case of all the foregoing Aggregate Payments all amounts or payments that are not subject to calculation under Treas. To the extent any payment is to be made over time Reg. §1.280G-1, Q&A-24(b) or (e.g., in installments, etc.), then the payments c) shall be reduced in reverse chronological orderbefore any amounts that are subject to calculation under Treas. The determination as to which Reg. §1.280G-1, Q&A-24(b) or (c). (b) For purposes of this Section, the “After Tax Amount” means the amount of the alternative provisions Aggregate Payments less all federal, state, and local income, excise and employment taxes imposed on you as a result of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days your receipt of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeAggregate Payments. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall applyAfter Tax Amount, Employee you shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the each applicable state and locality of Employee’s residence on the date of terminationlocality, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. (c) The determination as to whether a reduction in the Aggregate Payments shall be made pursuant to this Section shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and you within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or you. Any determination by the Accounting Firm shall be binding upon the Company and Employeeyou.

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or any of its affiliates to Employee Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “excess parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and would, but for this Section 3.3(c8, be (x) be nondeductible under Section 280G of the Code and/or (y) subject to the excise tax imposed under Section 4999 of the Code (or any successor provision theretoprovisions applicable to such Sections) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following Covered Payments will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, is subject to the Excise Tax; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax). Any reductions hereunder shall applybe made in accordance with Section 409A of the Code and the rules and regulations promulgated thereunder (“Section 409A”) and the following: (A) the payments and benefits that do not constitute nonqualified deferred compensation subject to Section 409A shall be reduced first; and (B) all other payments and benefits shall then be reduced as follows: (iI) If the Covered Payments, cash payments shall be reduced by the sum of (1) the Excise Tax before non-cash payments; and (2II) the total of the Federalpayments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. Any determination required under this Section 8, stateincluding, and local income and employment taxes payable by Employee on the amount of the Covered Payments which but not limited to, whether any payments or benefits are in excess of three times Employee’s or could be “base amountparachute payments” within the meaning of Section 280(G) 280G of the Code less one dollar (the “Threshold Amount”)Code, are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced determined by the sum of Board (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcor its designee).), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Section 280G. (a) Notwithstanding any other provisions of anything contained in this Agreement, or any other plan, arrangement or agreement Employment Agreement to the contrary, if (i) to the extent that any payment or distribution of any type to or for the Executive by the Company, any affiliate of the payments Company, any Person who acquires ownership or benefits provided or to be provided by effective control of the Company or its affiliates to Employee or for Employeeownership of a substantial portion of the Company’s benefit pursuant to the terms of this Agreement or otherwise assets (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and the regulations thereunder), or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Employment Agreement or otherwise (the “Payments”) constitute “parachute payments” (within the meaning of Section 280G of the Code), and if (ii) such aggregate would, but for this Section 3.3(c) be subject to if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then be less than the following shall apply: amount the Executive would receive, after all taxes, if the Executive received aggregate Payments equal (ias valued under Section 280G of the Code) If to the Covered Payments, reduced by the sum of (1) maximum amount that could be paid without any Payments being subject to the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold AmountTax, then the Covered (iii) such Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payments to be made or benefit to be provided to the sum Executive shall be subject to the Excise Tax. If the Payments are so reduced, the Company shall reduce or eliminate the Payments (x) by first reducing or eliminating the portion of all Covered the Payments shall which are not exceed payable in cash (other than that portion of the Threshold AmountPayments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time. In applying these principles, any reductions shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such event, the Covered Payments amounts shall be reduced on a pro rata basis but not below zero. (b) It is possible that after the determinations and selections made pursuant to this Section 6.2 the Executive will receive Payments that are, in the following order: aggregate, either more or less than the amount provided under this Section 6.2 (A) cash payments not subject hereafter referred to Section 409A; (B) cash payments subject as an “Excess Payment” or “Underpayment,” respectively). If it is established, pursuant to Section 409A; (C) equity-based payments a final determination of a court or an Internal Revenue Service proceeding that has been finally and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g.conclusively resolved, in installments, etc.)that an Excess Payment has been made, then the payments Executive shall be reduced promptly pay an amount equal to the Excess Payment to the Company, together with interest on such amount at the applicable federal rate (as defined in reverse chronological order. The determination as to which and under Section 1274(d) of the alternative provisions of Section 3.3(c)(iiCode) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of from the date of termination, if applicable, or at the Executive’s receipt of such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on Excess Payment until the date of terminationsuch payment. In the event that it is determined (x) by arbitration pursuant to Section 7.6, net (y) by a court or (z) by the Company’s independent accountants upon request by a Party, that an Underpayment has occurred, the Company shall promptly pay an amount equal to the Underpayment to the Executive, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the Executive had the provisions of this Section 6.2 not been applied until the maximum reduction in Federal income taxes which could be obtained from deduction date of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeepayment.

Section 280G. Notwithstanding (a) In the event that any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of in this Agreement or otherwise payable to you (collectively, the “Covered 280G Payments”) (1) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and would, (2) but for this Section 3.3(c) 7.9, would be subject to the excise tax imposed by Section 4999 of the Code, then the 280G Payments will be either (x) delivered in full or (y) delivered as to such lesser extent that would result in no portion of the 280G Payments being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999 of the Code (or and any successor provision thereto) or any similar tax imposed by equivalent state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”excise taxes), then results in your receipt, on an after-tax basis, of the following shall apply: (i) If the Covered greatest amount of 280G Payments, reduced by the sum notwithstanding that all or some portion of (1) the Excise Tax and (2) the total such 280G Payments may be taxable under Section 4999 of the Federal, state, and local income and employment taxes payable Code. Any reduction in the 280G Payments required by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of this Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced 7.9 will occur in the following order, as applicable: (Ai) reduction of cash payments that are not subject to Section 409A409A of the code; (Bii) reduction of cash payments that are subject to the Section 409A409A (beginning with amounts payable last in time) (iii) reduction of any other taxable benefits (other than equity); and (Civ) reduction of vesting acceleration of equity awards and equity compensation (including without limitation accelerated vesting of RSUs and PRSUs), but only after all other payments have been reduced to zero. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant for equity awards. If two (2) or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. Under no circumstances shall any reduction be applied to equity-based compensation unless and until all other payments have been reduced to zero (the “Equity Floor”). (b) All calculations and acceleration; and (D) non-cash forms of benefits. To determinations under this Section 7.9, including whether any reduction in 280G Payments is required to satisfy the extent any payment is to be made over time (e.g.Best Net Protection standard, in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by an independent nationally-recognized tax counsel (the “Tax Counsel”) selected by the Company. The Tax Counsel shall be a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which or law firm with expertise in Section 280G. The Tax Counsel shall provide a detailed written calculation of (i) the Safe Harbor Amount, (ii) the Total Parachute Payments, (iii) the amount and form of any reduction required under this Section, and (iv) the after-tax economic result to you. You shall be entitled to review all calculations and supporting calculations both data upon request and may provide input to the Company and Employee within 15 business days of Tax Counsel regarding reasonable assumptions used in the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. analysis. (c) For purposes of determining which making the calculations and determinations required by this Section, the Tax Counsel shall apply reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, Code. You and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company will furnish the Tax Counsel with such information and Employeedocuments as the Tax Counsel may reasonably request in order to make its determinations under this Section 7.9. The Company will bear all costs the Tax Counsel incur in connection with its services.

Section 280G. Notwithstanding any other provisions provision of this AgreementPlan, except as set forth in Section 14(b), in the event that the Company undergoes a “Change in Ownership or any other planControl” (as defined below), arrangement or agreement the following provisions shall apply: (a) The Company shall not be obligated to provide to the contrary, if Covered Employee any portion of any “Contingent Compensation Payments” (as defined below) that the payments or benefits provided or Covered Employee would otherwise be entitled to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant receive to the terms of this Agreement or otherwise (extent necessary to eliminate any “Covered Payments”) constitute “excess parachute payments” within (as defined in Section 280G(b)(1) of the meaning Code) for the Covered Employee. For purposes of this Section 14, the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Payments” and the aggregate amount (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Amount.” (b) Notwithstanding the provisions of Section 280G 14(a), no such reduction in Contingent Compensation Payments shall be made if (1) the Eliminated Amount (computed without regard to this sentence) exceeds (2) 100% of the Code aggregate present value (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-31 and wouldQ/A-32 or any successor provisions) of the amount of any additional taxes that would be incurred by the Covered Employee if the Eliminated Payments (determined without regard to this sentence) were paid to the Covered Employee (including state and federal income taxes on the Eliminated Payments, but for this Section 3.3(c) be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties payable with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total all of the Federal, state, and local income and employment taxes payable by Employee on the amount Contingent Compensation Payments in excess of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of (as defined in Section 280(G280G(b)(3) of the Code less one dollar (the “Threshold Amount”Code), are greater than or equal and any withholding taxes). The override of such reduction in Contingent Compensation Payments pursuant to the Threshold Amount, Employee this Section 14(b) shall be entitled referred to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.a

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to (a) In the contrary, if any of the payments or benefits provided or to be provided by event that the Company undergoes a “change in ownership or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise control” (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and wouldthe regulations and guidance promulgated thereunder (“Section 280G”)) and all, but or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the “Total Payments”), could constitute an “excess parachute payment” within the meaning of Section 280G, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion of the Total Payments shall be non-deductible for this US federal income taxes by reason of Section 3.3(c280G (the “Limited Amount”), or (ii) be subject if the amount of the Total Payments (without regard to clause (i)) reduced by the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”)) and the amount of all other applicable federal, then state and local taxes (with income taxes all computed at the following shall apply: (ihighest applicable marginal rate) If is greater than the Covered Payments, Limited Amount reduced by the sum amount of all taxes applicable thereto (1) with income taxes all computed at the Excise Tax and (2) the total of the Federalhighest marginal rate), state, and local income and employment taxes payable by Employee on the amount of the Covered Total Payments which are in excess of three times otherwise payable without regard to clause (i). If it is determined that the Limited Amount will maximize the Employee’s after-tax proceeds, the Total Payments shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, (iii) third, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, with all such reductions done on a pro rata basis. (b) All determinations made pursuant this Section 13 will be made at the Company’s or its Affiliates’ expense by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by the Company for such purpose (the “base amountIndependent Advisors”). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a “parachute payment” within the meaning of Section 280(G280G(b)(2) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (iiincluding by reason of Section 280G(b)(4)(A) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the FederalCode) or (z) constitutes reasonable compensation for services actually rendered, state, and local income and employment taxes on within the amount meaning of Section 280G(b)(4)(B) of the Covered Payments which are Code, in excess of the Threshold Amount, then “base amount” (as defined in Section 280G(b)(3) of the Covered Payments shall be reduced (but not below zeroCode) allocable to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amountsuch reasonable compensation. In such event, the Covered Payments shall be reduced in the following order: event it is later determined that (A) cash payments not subject a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 409A; 13, the excess amount shall be returned immediately by the Executive to the Company or (B) cash payments subject a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To 13, the extent any payment is to be made over time (e.g., in installments, etc.), then the payments additional amount shall be reduced in reverse chronological order. The determination as to which paid immediately by the Company, or any Affiliate of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”)Company, which shall provide detailed supporting calculations both as applicable, to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

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

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

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

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

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

Section 280G. Notwithstanding In the event it shall be determined that any other provisions of this Agreement, payment or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided distribution by the Company or any of its affiliates to Employee or for Employee’s the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (the “Covered Total Payments”), is or will be subject to the excise tax (the “Excise Tax”) constitute imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), if the net after-tax benefit to Executive after reducing Executive’s Total Payments to the Safe Harbor Cap is greater than the net after-tax (including the Excise Tax) benefit to Executive without such reduction. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the cash payments made pursuant to Section 5(a)(ii) of this Agreement, then to the payment made pursuant to Section 5(a)(iii) of this Agreement, then to any payment made pursuant to Section 5(a)(iv) of this Agreement, then to any payment made pursuant to Section 5(a)(v) of this Agreement, then to any payment made pursuant to Section 5(a)(vi) of this Agreement, and then to any other payment that triggers such Excise Tax in the following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant); (iii) cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant); and (iv) reduction of any other payments due to Executive (with benefits or payments in any group having different payment terms being reduced on a pro-rata basis). All mathematical determinations, and all determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”Code), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which that are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal required to the Threshold Amount, Employee shall be entitled to the full benefits payable made under this Agreement; and (ii) If paragraph, including determinations as to whether the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Total Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments to Executive shall be reduced (but not below zero) to the extent necessary so that Safe Harbor Cap and the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is assumptions to be made over time (e.g.utilized in arriving at such determinations, in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made at the Company’s expense by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both mutually acceptable to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

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

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if (a) If any of the payments or benefits provided received or to be provided received by the Company Employee (including, without limitation, any payment or its affiliates to Employee benefits received in connection with a Change in Control or for the Employee’s benefit termination of employment, whether pursuant to the terms of this Agreement or otherwise any plan, arrangement, or agreement, or otherwise) (all such payments collectively referred to herein as the “Covered 280G Payments”) (i) constitute “parachute payments” “ within the meaning of Section 280G of the Code Code, and would, but for this Section 3.3(c(ii) would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following Employee's benefits under this Agreement shall apply: be either (iA) If the Covered Paymentsdelivered, reduced by the sum subject to any applicable tax or other withholdings, in full, or (B) delivered, subject to any applicable tax or other withholdings, to such lesser extent as would result in no portion of (1) such benefits being subject to the Excise Tax and (2) the total Tax, whichever of the Federalforegoing amounts, statetaking into account the applicable federal, state and local income and employment taxes payable and the Excise Tax, results in the receipt by Employee Employee, on an after-tax basis, of the greatest amount of the Covered Payments which are in excess benefits, notwithstanding that all or some portion of three times Employee’s “base amount” within the meaning of such benefits may be taxable under Section 280(G) 4999 of the Code less one dollar (Code. In the “Threshold Amount”event that 280G Payments are to be reduced in accordance with this Section 1.3.7(a), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered 280G Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall will be reduced in the following order: (Ai) cash payments not subject to Section 409A409A of the Code; (Bii) cash payments subject to Section 409A409A of the Code; (Ciii) equity-based payments and accelerationoption or other equity award acceleration if applicable; (iv) RSUs if applicable; and (Dv) non-cash noncash forms of benefits. To the extent any such payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced waived in reverse chronological order. The determination as to which of the alternative provisions of . (b) All calculations and determinations under this Section 3.3(c)(ii) shall apply to Employee 1.3.7 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company and agreed to by the Employee (either of which shall be referred to hereinafter as the “Accounting FirmTax Counsel”), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and the Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeefor all purposes. For purposes of determining which making the calculations and determinations required by this Section 1.3.7, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Code. The Company and the Employee shall be deemed furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeemake its determinations under this Section 1.3.

Section 280G. (a) Notwithstanding any other provisions of anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that any of the payments payment or benefits provided benefit received or to be provided received by Executive (including any payment or benefit received in connection with a “Change in Control” (as defined in the Company 2005 Plan) or its affiliates to Employee or for Employeethe termination of Executive’s benefit employment, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “Covered Total Payments”) constitute “parachute payments” within would not be deductible (in whole or part) by the meaning Company or any Affiliates making such payment or providing such benefit as a result of Section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), the portion of the Total Payments that do not constitute deferred compensation within the meaning of Section 409A of the Code shall first be reduced (if necessary, to zero), and wouldall other Total Payments shall thereafter be reduced (if necessary, to zero), with cash payments being reduced before non-cash payments, and payments to be paid last being reduced first; provided, however, that such reduction shall only be made if (i) the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (ii) the amount of such Total Payments without such reduction (but for this Section 3.3(c) be subject to after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”) on such unreduced Total Payments). (b) It is possible that, after the determinations and selections made pursuant to Section 7(a) above, Executive will receive 280G Benefits that are, in the aggregate, either more or less than the amount determined under Section 7(a) above (hereafter referred to as an “Excess Payment” or “Underpayment”, as applicable). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then Executive shall promptly repay the following shall apply: Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in Section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. In the event that it is determined (i) If the Covered Paymentsby arbitration pursuant to Section 9(k), reduced (ii) by a court or (iii) by the sum accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor, upon request of (1) either party, that an Underpayment has occurred, the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the Company shall promptly pay an amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold AmountUnderpayment to Executive (but in any event within ten (10) days of such determination), Employee shall be entitled together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the full benefits payable under this Agreement; and (ii) If Executive had the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii7(a) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of not been applied until the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeepayment.

Section 280G. a. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee the Consultant or for Employeethe Consultant’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments (“parachute payments” Parachute Payments”) within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 6 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following Covered Payments shall apply: be either (i) If reduced to the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess of three times Employee’s “base is subject to the Excise Tax (that amount” within the meaning of Section 280(G) of the Code less one dollar (, the “Threshold Reduced Amount”), are greater than ) or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If payable in full if the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total Consultant’s receipt on an after-tax basis of the Federalfull amount of payments and benefits (after taking into account the applicable federal, state, local and local income foreign income, employment and employment excise taxes (including the Excise Tax)) would result in the Consultant receiving an amount greater than the Reduced Amount on the amount of the Covered Payments which are an after-tax basis. Any reduction in excess of the Threshold Amount, then the Covered Payments shall be made in a manner that maximizes the Consultant’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced (on a pro rata basis but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to . a. All calculations and determinations under this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee 6 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel”), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and the Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeefor all purposes. For purposes of determining which making the calculations and determinations required by this Section 6, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and Employeethe Consultant shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 6. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if (a) If any of the payments or benefits provided received or to be provided received by the Company Employee (including, without limitation, any payment or its affiliates to Employee benefits received in connection with a Change in Control or for the Employee’s benefit termination of employment, whether pursuant to the terms of this Agreement or otherwise any plan, arrangement, or agreement, or otherwise) (all such payments collectively referred to herein as the “Covered 280G Payments”) (i) constitute “parachute payments” “ within the meaning of Section 280G of the Code Code, and would, but for this Section 3.3(c(ii) would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following Employee’s benefits under this Agreement shall apply: be either (iA) If the Covered Paymentsdelivered, reduced by the sum subject to any applicable tax or other withholdings, in full, or (B) delivered, subject to any applicable tax or other withholdings, to such lesser extent as would result in no portion of (1) such benefits being subject to the Excise Tax and (2) the total Tax, whichever of the Federalforegoing amounts, statetaking into account the applicable federal, state and local income and employment taxes payable and the Excise Tax, results in the receipt by Employee Employee, on an after-tax basis, of the greatest amount of the Covered Payments which are in excess benefits, notwithstanding that all or some portion of three times Employee’s “base amount” within the meaning of such benefits may be taxable under Section 280(G) 4999 of the Code less one dollar (Code. In the “Threshold Amount”event that 280G Payments are to be reduced in accordance with this Section 1.3.7(a), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered 280G Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall will be reduced in the following order: (Ai) cash payments not subject to Section 409A409A of the Code; (Bii) cash payments subject to Section 409A409A of the Code; (Ciii) equity-based payments and accelerationoption or other equity award acceleration if applicable; (iv) RSUs if applicable; and (Dv) non-cash noncash forms of benefits. To the extent any such payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced waived in reverse chronological order. The determination as to which of the alternative provisions of . (b) All calculations and determinations under this Section 3.3(c)(ii) shall apply to Employee 1.3.7 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company and agreed to by the Employee (either of which shall be referred to hereinafter as the “Accounting FirmTax Counsel”), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and the Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeefor all purposes. For purposes of determining which making the calculations and determinations required by this Section 1.3.7, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Code. The Company and the Employee shall be deemed furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeemake its determinations under this Section 1.3.

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 22 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of three times Employee’s the Covered Payments is subject to the Excise Tax. “base amountNet Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

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

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