Common use of Parachute Payments Clause in Contracts

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the CodeCode or any interest or penalties payable with respect to such excise tax (such excise tax, thentogether with any such interest and penalties, at your discretionare hereinafter collectively referred to as the “Excise Tax”), your severance and other benefits under this Agreement then Employee shall be payable either entitled to receive from the Company an additional payment (ithe “Gross-Up Payment”) in fullan amount sufficient to reimburse Employee for both (A) such Excise Tax, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (iiB) cash payments not subject to Section 409A of the Codeincome, excise, employment and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of any other taxes imposed on the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required Gross Up Payment provided under this Section shall be made in writing 4. The accounting firm engaged by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For general audit purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 as of the Code. The Company and you shall furnish day prior to the Accountants such information and documents as effective date of the Accountants may reasonably request in order to make a determination under this Section. The Accountants Change of Control shall deliver to perform the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsforegoing calculations. The Company shall bear all costs expenses with respect to the Accountants may determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably incur in connection acceptable to Employee that no Excise Tax will be imposed with any calculations contemplated by this Sectionrespect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employee.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your Employee’s discretion, your Employee’s severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Employee on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-pro rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with . Reduction in either cash payments or equity all being reduced in reverse order of vesting compensation benefits shall be made prorata between and equity not among benefits which are subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectSection 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and you Employee otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Employee and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the acceleration and severance and other benefits provided for in this Agreement or otherwise payable to you (iA) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and (iiB) but for this Sectionparagraph, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other then Employee's benefits under this Agreement hereunder shall be payable either either: (iX) in full, or (iiY) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Employee on an after-tax basis, of the greatest amount of severance benefits under this Agreementhereunder, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you Employee otherwise agree in writing, any determination required under this Section paragraph shall be made in writing by the Company’s independent public accountants designated by the Company (the “"Accountants”"), whose determination shall be conclusive and binding upon you Employee and the Company for all purposes. For purposes of making the calculations required by this Sectionparagraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and you Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsparagraph. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionparagraph.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement If any payment or benefit you will or may receive from Zoom or otherwise payable to you (a “Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code Code, and (ii) but for this Sectionsentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then, at your discretion, your severance and other benefits under this Agreement then any such Payment shall be payable equal to the Reduced Amount. The “Reduced Amount” shall be either (ix) in full, or (ii) as to such lesser amount which the largest portion of the Payment that would result in no portion of such severance and other benefits the Payment (after reduction) being subject to the excise tax under Section 4999 Excise Tax or (y) the largest portion, up to and including the total, of the CodePayment, whichever of amount (i.e., the foregoing amountsamount determined by clause (x) or by clause (y)), after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the excise tax imposed by Section 4999Excise Tax (all computed at the highest applicable marginal rate), results in the receipt by you your receipt, on an after-tax basis, of the greatest amount of severance benefits under this Agreement, greater economic benefit notwithstanding that all or some portion of such severance benefits the Payment may be taxable under Section 4999 subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the Code. Any preceding sentence, the reduction shall be made occur in the following manner: first a pro-manner (the “Reduction Method”) that results in the greatest economic benefit for you. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata reduction (the “Pro Rata Reduction Method”). Notwithstanding any provisions in this Section above to the contrary, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of (i) cash payments the Payment being subject to taxes pursuant to Section 409A that would not otherwise be subject to taxes pursuant to Section 409A, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of the Code as deferred compensation and (ii) cash payments not subject taxes pursuant to Section 409A as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for you as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are “deferred compensation” within the meaning of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as shall be reduced (or eliminated) before Payments that are not deferred compensation and (ii) equity-based compensation not subject within the meaning of Section 409A. Zoom shall appoint a nationally recognized accounting or law firm to Section 409A of make the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations determinations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company Zoom shall bear all costs expenses with respect to the Accountants may reasonably incur in connection with determinations by such accounting or law firm required to be made hereunder. If you receive a Payment for which the Reduced Amount was determined pursuant to clause (x) above and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, you agree to promptly return to Zoom a sufficient amount of the Payment (after reduction pursuant to clause (x) above) so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) above, you shall have no obligation to return any calculations contemplated by this Sectionportion of the Payment pursuant to the preceding sentence.

Parachute Payments. In Notwithstanding anything to the event contrary in this Agreement, if it is determined (as hereafter provided) that any payment or distribution to or for Key Employee’s benefit, whether paid or payable or distributed or distributable pursuant to the severance and other benefits provided for in terms of this Agreement or otherwise payable pursuant to you (i) constitute “parachute payments” within or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the meaning lapse or termination of Section 280G any restriction on or the vesting or exercisability of any of the Code and foregoing (ii) but for this Sectiona “Payment”), would be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, thenor any interest or penalties with respect to such excise tax (such tax or taxes, at your discretiontogether with any such interest and penalties, your severance and other benefits under this Agreement are hereafter collectively referred to as the “Excise Tax”), then Key Employee shall be payable either entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that, after payment by Key Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, Key Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) in full, or (iiall of the Payments shall be treated as “parachute payments” within the meaning of section 280G(b)(2) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever and all “excess parachute payments” within the meaning of section 280G(b)(1) of the foregoing amountsCode shall be treated as subject to the Excise Tax, taking unless in the opinion of tax counsel selected by the Company’s independent auditors and reasonably acceptable to Key Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as such term is defined in section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Key Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Key Employee’s residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the applicable time of Key Employee’s termination of employment, Key Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes and the excise tax imposed on the Gross-Up Payment being repaid by Section 4999, Key Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 repayment at the rate provided in section 1274(b)(2)(B) of the Code. Any reduction shall In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be made in determined at the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A time of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the CodeGross-Up Payment), and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree shall make an additional Gross-Up Payment in writingrespect of such excess (plus any interest, any determination required under this Section shall be made in writing penalties or additions payable by Key Employee with respect to such excess) at the Company’s independent public accountants (time that the “Accountants”), whose determination shall be conclusive and binding upon you amount of such excess is finally determined. Key Employee and the Company for all purposes. For purposes of making shall each reasonably cooperate with the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur other in connection with any calculations contemplated administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Severance Payments. Notwithstanding anything in this Agreement to the contrary, in no event shall payments under this Section be made later than the end of Key Employee’s taxable year following the taxable year in which the related Excise Tax is remitted by this Sectionor on behalf of the Key Employee.

Parachute Payments. In Notwithstanding anything to the event contrary in this Agreement, if it is determined (as hereafter provided) that any payment or distribution to or for Key Employee’s benefit, whether paid or payable or distributed or distributable pursuant to the severance and other benefits provided for in terms of this Agreement or otherwise payable pursuant to you (i) constitute “parachute payments” within or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the meaning lapse or termination of Section 280G any restriction on or the vesting or exercisability of any of the Code and foregoing (ii) but for this Sectiona “Payment”), would be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, thenor any interest or penalties with respect to such excise tax (such tax or taxes, at your discretiontogether with any such interest and penalties, your severance and other benefits under this Agreement are hereafter collectively referred to as the “Excise Tax”), then Key Employee shall be payable either entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that, after payment by Key Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, Key Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) in full, or (iiall of the Payments shall be treated as “parachute payments” within the meaning of section 28OG(b)(2) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever and all “excess parachute payments” within the meaning of section 28OG(b)(1) of the foregoing amountsCode shall be treated as subject to the Excise Tax, taking unless in the opinion of tax counsel selected by the Company’s independent auditors and reasonably acceptable to Key Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 28OG(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 28OG(b)(4)(B) of the Code, in excess of the “base amount” (as such term is defined in section 28OG(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of excess parachute payments within the meaning of section 28OG(b)(1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of sections 28OG(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Key Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Key Employee’s residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the applicable time of Key Employee’s termination of employment, Key Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes and the excise tax imposed on the Gross-Up Payment being repaid by Section 4999, Key Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 repayment at the rate provided in section 1274(b)(2)(B) of the Code. Any reduction shall In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be made in determined at the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A time of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the CodeGross-Up Payment), and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree shall make an additional Gross-Up Payment in writingrespect of such excess (plus any interest, any determination required under this Section shall be made in writing penalties or additions payable by Key Employee with respect to such excess) at the Company’s independent public accountants (time that the “Accountants”), whose determination shall be conclusive and binding upon you amount of such excess is finally determined. Key Employee and the Company for all purposes. For purposes of making shall each reasonably cooperate with the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur other in connection with any calculations contemplated administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Severance Payments. Notwithstanding anything in this Agreement to the contrary, in no event shall payments under this Section be made later than the end of Key Employee’s taxable year following the taxable year in which the related Excise Tax is remitted by this Sectionor on behalf of the Key Employee.

Parachute Payments. In Notwithstanding anything to the contrary herein or in any Benefit Plan, in the event it shall be determined that any monetary amounts or benefits due or payable by the severance and other benefits provided for in this Agreement Company to Executive (whether paid or otherwise payable to you (ipayable, or due or distributed) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be are or will become subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the any excise tax under Section 4999 of the CodeCode (collectively “Excise Taxes”), whichever then the amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be reduced to the extent necessary so that no portion of such amounts or benefits shall be subject to the Excise Taxes, but only if (i) the net amount of such amounts and benefits, as so reduced (and after the imposition of the foregoing amounts, taking into account the applicable total amount of taxes under federal, state and local income law on such amounts and benefits), is greater than (ii) the excess of (A) the net amount of such amounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the amount of Excise Taxes to which Executive would be subject on such unreduced amounts and benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the absence of such reduction, the Company and Executive shall make good faith efforts to seek to identify and pursue reasonable action to avoid or reduce the amount of Excise Taxes; provided, however, that this sentence shall not be construed to require Executive to accept any further reduction in the amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 10(d) shall override and control any inconsistent provision in the LTIP. All determinations required to be made under this Section 10(d), including whether reduction is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an independent accounting firm selected by the Company in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that no excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction Code is payable by Executive, the Company shall be made request that the Accounting Firm furnish Executive with written guidance that failure to report such excise tax on Executive’s applicable federal income tax return would not result in the following manner: first imposition of a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionnegligence or similar penalty.

Parachute Payments. In the event that any payments or benefits received or to be received by the severance and other benefits provided for in Executive pursuant to this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code, as determined by the accounting firm that audited the Company prior to the relevant “change in ownership or control” within the meaning of Section 280G of the Code or another nationally known accounting or employee benefits consulting firm selected by the Company prior to such change in ownership or control (the “Accounting Firm”) and (ii) but for this SectionSection 8(j), would would, in the judgment of the Accounting Firm, be subject to the excise tax imposed by Section 4999 of the Code by reason of Section 280G of the Code, then, at your discretion, your severance and other then the Executive’s benefits under this Agreement shall be payable either either: (iA) in full, or (iiB) as to such lesser amount which would result in no portion of such severance and other payments or benefits being subject to the excise tax under Section 4999 of the Code, as determined by the Accounting Firm, 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 49994999 of the Code, results in the receipt by you Executive, on an after-tax basis, of the greatest amount of severance payments and benefits under this Agreement, as determined by the Accounting Firm, notwithstanding that all or some portion of such severance payments and benefits may be taxable under Section 4999 of the Code. Any reduction In the event that a lesser amount is paid under clause (ii)(B) above, then the elements of Executive’s payments hereunder shall be made reduced in such order (1) as the Company determines, in its sole discretion, has the least economic detriment to the Executive and (2) which does not result in the following manner: first a pro-rata reduction imposition of (i) cash any tax penalties under Section 409A on the Executive. To the extent the economic impact of reducing payments from one or more elements is equivalent, and subject to Section 409A clause (2) of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of preceding sentence, the Code, and second a reduction may be made pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless by the Company and you otherwise agree in writingits sole discretion. In connection with making determinations hereunder, the Accounting Firm shall take into account the value of any determination required under this Section shall reasonable compensation for services to be made in writing rendered by the Company’s independent public accountants Executive before or after the 280G CIC, including any noncompetition provisions that may apply to the Executive (the “Accountants”whether set forth in this Agreement or otherwise), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes shall cooperate in the valuation of making the calculations required by this Sectionany such services, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with including any calculations contemplated by this Sectionnoncompetition provisions.

Parachute Payments. (a) In the event that the severance any payments and other benefits provided for in under this Agreement or otherwise payable to any other agreement or arrangement between the Company and you (collectively, the “Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Sectionsection, would be subject to the excise tax imposed by Section 4999 of the Code, then, at then your discretion, your severance and other benefits under this Agreement or otherwise shall be payable either (ia) in full, or (iib) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the an excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the your receipt by you on an after-tax basis, of the greatest amount of severance benefits under this AgreementAgreement or otherwise, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code; provided, however, that this sentence shall not apply if, immediately before the change in ownership or control on which such Payment is contingent or otherwise relates, no stock in the Company is readily tradeable on an established securities market or otherwise (as determined in accordance with Treasury Reg. Any Section 1.280G-1 Q&A 6). In applying this principle, the reduction shall be made in a manner consistent with the following manner: first a pro-rata reduction requirements of (i) cash payments subject to Code Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code409A, and second a if more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectrata. Unless you and the Company and you otherwise agree in writing, any determination required under this Section section shall be made in writing by the Company’s independent public accountants immediately preceding the change in ownership or control on which such Payments are contingent or otherwise relate (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Sectionsection, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The You and the Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnssection. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionsection as well as any costs incurred by you with the Accountants for tax planning under Sections 280G and 4999 of the Code.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and (ii) but for this Sectionsubparagraph, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your then the severance and other benefits under this Agreement shall will be payable either either: (ia) delivered in full, or (iib) delivered as to such lesser amount extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreementbenefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation Unless you and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall subparagraph will be made in writing by the Company’s independent public accountants immediately prior to any change of control or such other person or entity to which the parties mutually agree (the “Accountants”), whose determination shall will be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Sectionsubparagraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, reasonable good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The You and the Company and you shall will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnssubparagraph. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionsubparagraph.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable or provided to you Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and (ii) but for this SectionSection XI, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then, at your discretion, your severance and other then the Executive’s benefits under this Agreement shall be payable either (ia) delivered in full, or (iib) delivered as to such lesser amount extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by you the Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreementbenefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section shall XI will be made in writing by a national “Big Four” accounting firm selected by the Company’s independent public accountants Company or such other person or entity to which the parties mutually agree (the “Accountants”), whose determination shall will be conclusive and binding upon you the Executive and the Company for all purposes. For purposes of making the calculations required by this SectionSection XI, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this SectionSection XI. Any reduction in payments and/or benefits required by this Section XI shall occur in the following order: (1) reduction of cash payments; and (2) reduction of equity acceleration (full-value awards first, then stock options), and (3) other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive’s equity awards. The Accountants shall provide their calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which the Accountants have been engaged to make such determinations or such other time as requested by the Company or Executive. If the Accountants determine that no Excise Tax is payable with respect to a payment or benefit, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such payment or benefit. Any good faith determinations of the Accountants made hereunder shall be final, binding and conclusive upon the Company and Executive.

Parachute Payments. In the event that the severance any payments and other benefits provided for in this Agreement or otherwise payable to you (i) Executive constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) Code, and, but for this Sectionparagraph, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your then any post-termination severance payments and other benefits payable under this Agreement shall or otherwise will be payable either (i1) delivered in full, full or (ii2) delivered as to such lesser amount extent which would result in no portion of such severance payments and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by you Executive, on an after-tax basis, of the greatest amount of severance benefits under this Agreementpayments and benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any If a reduction shall be made in Executive’s payments and benefits is necessitated by the preceding sentence, such reduction will occur in the following mannerorder: first a pro-rata reduction of (i) any cash payments subject to Section 409A severance based on a multiple of the Code as deferred compensation and base salary or annual bonus, (ii) any other cash payments not subject amounts payable to Section 409A of the CodeExecutive, (iii) benefits valued as parachute payments, and second a pro rata cancellation of (iiv) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order acceleration of vesting and of any equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectawards. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section shall paragraph will be made in writing by the Company’s or its affiliates’ independent public accountants (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon you Executive and the Company for all purposesCompany. For purposes of making the calculations required by this Sectionparagraph, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsparagraph. The Company shall will bear all costs the Accountants Firm may reasonably incur in connection with any calculations contemplated by this Sectionparagraph.

Parachute Payments. In Notwithstanding any other provisions of this Agreement or any other Company plan, arrangement or agreement (“Company Arrangement”), in the event that any payment or benefit by the severance and other benefits provided Company or otherwise to or for in the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise payable (all such payments and benefits, including the payments and benefits under this Section 6 above, being hereinafter referred to you (i) constitute as the “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this SectionTotal Payments”), would be subject (in whole or in part) to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then, at your discretion, your severance and other benefits under this Agreement then the Total Payments shall be payable either reduced (ibut not below zero) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 minimum extent necessary to avoid the imposition of the Code, whichever of Excise Tax on the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the CodeTotal Payments. Any such reduction shall be made by the Company in its sole discretion consistent with the following manner: first a pro-rata reduction requirements of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to “Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject409A”). Unless the Company and you otherwise agree in writing, any Any determination required under this Section 6(f), including whether any payments or benefits are parachute payments, shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination Company in its sole discretion. Employee shall be conclusive and binding upon you and provide the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants with such information and documents as the Accountants Company may reasonably request in order to make a determination under this SectionSection 6(f). The Accountants Company’s determinations shall deliver be final and binding on the Company and the Employee. In the event it is later determined that to implement the objective and intent of this Section 6(f), (i) a greater reduction in the Total Payments should have been made, the excess amount shall be returned promptly by Employee to the Company and you sufficient documentation for you or (ii) a lesser reduction in the Total Payments should have been made, the excess amount shall be paid or provided promptly by the Company to rely on it for purpose Employee, except to the extent the Company reasonably determines would result in imposition of filing your an excise tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.under Section 409A.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Sectionsection, would be subject to the excise tax imposed by Section 4999 of the Code, then, at then your discretion, your severance and other benefits under this Agreement or otherwise shall be payable either (ia) in full, or (iib) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the an excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the your receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreementagreement or otherwise, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any In applying this principle, the reduction shall be made in a manner consistent with the following manner: first a pro-rata reduction requirements of (i) cash payments subject to Code Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code409A, and second a if more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectrata. Unless the Company you and you Freshworks otherwise agree in writing, any determination required under this Section section shall be made in writing by the Company’s Freshworks’ independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company Freshworks for all purposes. For purposes of making the calculations required by this Sectionsection, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company You and you Freshworks shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Sectionsection. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company Freshworks shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionsection as well as any costs incurred by you with the Accountants for tax planning under Sections 280G and 4999 of the Code.

Parachute Payments. In the event that the acceleration and severance and other benefits provided for in this Agreement or otherwise payable to you (iA) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (iiB) but for this Sectionparagraph, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other then Employee’s benefits under this Agreement hereunder shall be payable either either: (iX) in full, or (iiY) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Employee on an after-tax basis, of the greatest amount of severance benefits under this Agreementhereunder, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section paragraph shall be made in writing by the Company’s independent public accountants designated by the Company (the “Accountants”), whose determination shall be conclusive and binding upon you Employee and the Company for all purposes. For purposes of making the calculations required by this Sectionparagraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and you Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsparagraph. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionparagraph. In the event that a reduction in payments and/or benefits is required under this section 4, such reduction shall occur in the following order: (1) reduction of cash payments; (2) reduction of acceleration of vesting of options and shares; and (3) reduction of other benefits paid to Employee. If the acceleration of vesting of options and shares is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the highest price option grant or highest purchase price per share down to the lowest priced option grant or lowest purchase price per share.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your Employee’s severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Employee on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-pro rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with . Reduction in either cash payments or equity all being reduced in reverse order of vesting compensation benefits shall be made prorata between and equity not among benefits which are subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectSection 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and you Employee otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Employee and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In If any payment or benefit you would receive from the event that the severance and other benefits provided for in this Agreement Company pursuant to a Corporate Transaction or otherwise payable to you (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code Code, and (ii) but for this Sectionsentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then, at your discretion, your severance and other benefits under this Agreement then such Payment shall be payable equal to the Reduced Amount. The “Reduced Amount” shall be either (ix) in full, or (ii) as to such lesser amount which the largest portion of the Payment that would result in no portion of such severance and other benefits the Payment being subject to the excise tax under Section 4999 Excise Tax, or (y) the largest portion, up to and including the total, of the CodePayment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the excise tax imposed by Section 4999Excise Tax (all computed at the highest applicable marginal rate), results in the your receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, economic benefit notwithstanding that all or some portion of such severance benefits the Payment may be taxable under Section 4999 subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in a manner necessary to provide you with the greatest economic benefit. If more than one manner of reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, the payments and benefits shall be reduced pro rata. The independent registered public accounting firm engaged by the Company for general audit purposes as of the Code. Any reduction shall be made day prior to the effective date of the event described in the following manner: first a pro-rata reduction of (iSection 280G(b)(2)(A)(i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of shall perform the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsforegoing calculations. The Company shall bear all costs expenses with respect to the Accountants may reasonably incur in connection with determinations by such independent registered public accounting firm required to be made hereunder, and any calculations contemplated by this Sectiongood faith determinations of the independent registered public accounting firm made hereunder shall be final, binding and conclusive upon the Company and you.

Parachute Payments. In Notwithstanding any other provision in this Agreement or any other agreement or arrangement between the Company and you with respect to compensation or benefits (each an “Other Arrangement”), in the event that the severance and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application provisions of Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended, or any successor provisions (the “Code”), would cause you to receive a greater after-tax benefit from the Capped Benefit (as defined below) than from the amounts (including the monetary value of any non-cash benefits) otherwise payable pursuant to this Agreement or any Other Arrangement (the “Specified Benefits”), the Capped Benefit shall be paid to you in lieu of the Specified Benefits. The “Capped Benefit” shall equal the Specified Benefits, reduced by the amount necessary to prevent any portion of the Specified Benefits from being a “parachute payment” as defined in Section 280G(b)(2) of the Code. The Capped Benefit would therefore equal 2.99 multiplied by your applicable “base amount” as defined in Section 280G(b)(3) of the Code. For purposes of determining whether you would receive a greater after-tax benefit from the Capped Benefit than from the Specified Benefits, there shall be taken into account any excise tax that would be imposed under Section 4999 of the Code and all federal, state and local taxes required to be paid by you in respect of the receipt of such payments. The parties acknowledge that the application of Section 280G is uncertain in many respects and agree that the Company shall make all calculations and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination determinations under this Section. The Accountants section (including application and interpretation of the Code and related regulatory, administrative and judicial authorities) in good faith, which calculations and determinations shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsbe conclusive absent manifest error. The Company shall bear all costs provide you with a reasonable opportunity to review and comment on the Accountants may reasonably incur Company’s calculations of the Capped Benefit and to request which of the Specified Benefits shall be reduced. If, after payment of any amount under this Agreement or any Other Arrangement, it is determined that the calculation of the Capped Benefit was calculated incorrectly, the amount of the Capped Benefit will be adjusted, the Company shall pay to you any additional amount that should have been paid to you, and you shall repay to the Company any amount that should not have been paid to you, in connection each case with any calculations contemplated by this Sectioninterest at the discount rate applicable under Section 280G(d)(4) of the Code.

Parachute Payments. In Notwithstanding anything to the contrary herein or in any Benefit Plan, in the event it shall be determined that any monetary amounts or benefits due or payable by the severance and other benefits provided for in this Agreement Company to Executive (whether paid or otherwise payable to you (ipayable, or due or distributed) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be are or will become subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the any excise tax under Section 4999 of the CodeCode (collectively “Excise Taxes”), whichever then the amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be reduced to the extent necessary so that no portion of such amounts or benefits shall be subject to the Excise Taxes, but only if (i) the net amount of such amounts and benefits, as so reduced (and after the imposition of the foregoing amounts, taking into account the applicable total amount of taxes under federal, state and local income law on such amounts and benefits), is greater than (ii) the excess of (A) the net amount of such amounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the amount of Excise Taxes to which Executive would be subject on such unreduced amounts and benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the absence of such reduction, the Company and Executive shall make good faith efforts to seek to identify and pursue reasonable action to avoid or reduce the amount of Excise Taxes; provided, however, that this sentence shall not be construed to require Executive to accept any further reduction in the amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 7(d) shall override and control any inconsistent provision in the Xxxxxx Products, Inc. Long-Term Capital Accumulation Plan. All determinations required to be made under this Section 7(d), including whether reduction is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an independent accounting firm selected by the Company in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. In the event that such Accounting Firm is serving as accountant or auditor for the individual, entity or group acting as the acquirer in a Change in Control, the Company shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to herein as the Accounting Firm). All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that no excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction Code is payable by Executive, the Company shall be made request that the Accounting Firm furnish Executive with written guidance that failure to report such excise tax on Executive’s applicable federal income tax return would not result in the following manner: first imposition of a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionnegligence or similar penalty.

Parachute Payments. In (a) Notwithstanding anything to the event contrary contained in this Agreement, to the extent that any amount, stock option, restricted stock, RSUs, other equity awards or benefits paid or distributed to the severance and other benefits provided for in Executive pursuant to this Agreement or otherwise payable to you any other agreement or arrangement between the Company and the Executive (icollectively, the "280G Payments") (a) constitute “a "parachute payments” payment" within the meaning of Section 280G of the Code and (iib) but for this SectionSection 21, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement then the 280G Payments shall be payable either (i) in full, full or (ii) as to in such lesser amount which would result in no portion of such severance and other benefits 280G Payments being subject to the excise tax under Section 4999 of the Code, ; whichever of the foregoing amounts, taking into account the applicable federal, state and local income or excise taxes and (including the excise tax imposed by Section 4999, ) results in the Executive’s receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Executive and the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s an independent public accountants accountant selected by the Company (the “"Accountants”"), whose determination shall be conclusive and binding upon you the Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section, as well as any reasonable legal or accountant expenses, or any additional taxes, that the Executive may incur as a result of any calculation errors made by the Accountant and/or the Company in connection with the Code Section 4999 excise tax analysis contemplated by this Section.

Parachute Payments. In the event that the acceleration and severance and other benefits provided for in this Agreement or otherwise payable to you (iA) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (iiB) but for this Sectionparagraph, would be subject to the excise tax imposed by Section 4999 of the Code, then, at then your discretion, your severance and other benefits under this Agreement hereunder shall be payable either either: (iX) in full, or (iiY) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreementhereunder, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section paragraph shall be made in writing by the Company’s independent public accountants designated by the Company (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Sectionparagraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsparagraph. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionparagraph. In the event that a reduction in payments and/or benefits is required under this paragraph, such reduction shall occur in the following order: (1) reduction of cash payments; (2) reduction of acceleration of vesting of options and shares; and (3) reduction of other benefits paid to you. If the acceleration of vesting of options and shares is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the highest price option grant or highest purchase price per share down to the lowest priced option grant or lowest purchase price per share.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement letter agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Sectionsection, would be subject to the excise tax imposed by Section 4999 of the Code, then, at then your discretion, your severance and other benefits under this Agreement letter agreement or otherwise shall be payable either (ia) in full, or (iib) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the an excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the your receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreementletter agreement or otherwise, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation Unless you and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Sectionsection, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The You and the Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnssection. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionsection as well as any costs incurred by you with the Accountants for tax planning under Sections 280G and 4999 of the Code.

Parachute Payments. In (a) Notwithstanding anything to the event contrary herein, if the Company enters into an agreement the consummation of which would result in a Change in Control, an independent registered public accounting firm retained by the Company prior to the occurrence of such Change in Control (the “Accounting Firm”) shall determine whether all or any portion of the compensatory payments that the severance and other benefits provided for Participant receives from the Company (including any compensation received in this Agreement or otherwise payable to you (irespect of the RSUs) will constitute “excess parachute payments” " within the meaning of Section 280G of the Code and (ii) but for this Section, such that the Participant would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and Code or any other benefits under this Agreement shall be payable either (i) in full, similar state excise tax or (ii) as any interest or penalty is incurred by the Participant with respect to such lesser amount which excise tax (the “Excise Tax”). If the Participant would result in no portion of such severance and other benefits being be subject to an Excise Tax, the excise Accounting Firm shall also determine whether the Participant would receive a greater net after tax under Section 4999 of the Code, whichever of the foregoing amountsbenefit, taking into account the all otherwise applicable federal, state and local income income, employment and excise taxes and that would otherwise be imposed on or with respect to such compensatory payments, if the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreementsuch compensatory payments were to be reduced to three times the Participant’s “base amount”, notwithstanding that all or some portion of such severance benefits may be taxable under as defined in Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i280G(b)(3) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants less one dollar (the “AccountantsSafe Harbor Limit”), whose determination shall be conclusive and binding upon you and . If the Company for all purposes. For purposes of making Participant would receive a greater net after-tax benefit if the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish compensatory payments were reduced to the Accountants such information and documents as Safe Harbor Limit, then the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose number of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur RSUs (or, if applicable, Restricted Shares) that could become vested in connection with such Change in Control shall be reduced (but not below zero) as and to the extent the Accounting Firm determines to be necessary so that the compensatory payments shall not exceed the Safe Harbor Limit. If, as a result of the vesting of any calculations contemplated portion of the RSUs prior to the date of the Change in Control, there is not a sufficient number of unvested RSUs (or, if applicable Restricted Shares) to reduce or forfeit to result in the aggregate compensatory payments be less than or equal to the Safe Harbor Limit, the Participant agrees to forego receipt of other compensation having a value (as determined by this Sectionthe Accounting Firm) equal to the additional number of whole or partial RSUs that would have had to have been reduced or forfeited to reduce the compensatory payments to the Safe Harbor Limit.

Parachute Payments. In the event that the severance and other benefits provided for in to you pursuant to this Agreement and any other agreement, benefit, plan, or otherwise payable to you policy of the Company (i) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and (ii) but for this SectionSection 9, such severance and benefits would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, then your severance and other benefits under this Agreement and any other agreement, benefit, plan, or policy of the Company shall be payable either either: (ia) in full, ; or (iib) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes (applying the then highest marginal tax rates) and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount mount of severance and other benefits under this AgreementAgreement and any other agreement, notwithstanding that all benefit, plan, or some portion of such severance benefits may be taxable under Section 4999 policy of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectCompany. Unless you and the Company and you otherwise agree in writing, any determination required under this Section 9 shall be made in writing by the Company’s independent public accountants agreed to by you and the Company (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this SectionSection 9, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application applications of Sections 280G and 4999 of the Code. The You and the Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this SectionSection 9. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. ‘The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this SectionSection 9. Notwithstanding the foregoing, in the event that the severance and other benefits provided to you pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Company constitute “parachute payments” within the meaning of Section 280G of the Code, and provided the Company is not then publicly traded, you may request that the Company seek to obtain the approval of such severance and other benefits by more than 75 percent of the voting power of all outstanding stock of the Company in accordance with Q&A — 7 of the Treasury Regulations under Section 280G of the Code. The Company shall bear all costs incurred in connection with soliciting the requested stockholder approval. If such stockholder approval is obtained then the reduction provisions of the first paragraph of this Section 9 shall not apply.

Parachute Payments. In the event that the severance and other benefits provided for in to the Executive pursuant to this Agreement or otherwise payable to you (iA) constitute “parachute payments” within the meaning of Section 280G of the Code and (iiB) but for this SectionSection 12(i), such severance and benefits would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your then the Executive’s severance and other benefits under this Agreement Section shall be payable either either: (iy) in full, or (iiz) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you the Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you the Executive otherwise agree in writing, any determination required under this Section 12(i) shall be made in writing by the Company’s independent public accountants reasonably agreed to by the Company and the Executive (the “Accountants”), whose determination shall be conclusive and binding upon you the Executive and the Company for all purposes. For purposes of making the calculations required by this SectionSection 12(i), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and you the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this SectionSection 12(i).

Parachute Payments. In the event that the severance severance, acceleration of stock options and other benefits provided for in this Agreement or otherwise payable to you Executive (i) constitute “"parachute payments” " within the meaning of Section 280G (as it may be amended or replaced) of the Internal Revenue Code of 1986, as amended or replaced (the "Code") and (ii) but for this SectionSection 6.4, would be subject to the excise tax imposed by Section 4999 (as it may be amended or replaced) of the CodeCode (the "Excise Tax"), then, at your discretion, your severance and other then Executive's benefits under this Agreement hereunder shall be payable either (iA) provided to Executive in full, or (iiB) provided to Executive only as to such lesser amount extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by you Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreementbenefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectExcise Tax. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section 6.4 shall be made in writing in good faith by the Company’s 's independent public accountants (the “"Accountants”"). In the event of a reduction in benefits hereunder, whose determination Executive shall be conclusive and binding upon you and given the Company for all purposeschoice of which benefits to reduce. For purposes of making the calculations required by this SectionSection 6.4, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsSection 6.4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this SectionSection 6.4.

Parachute Payments. In the event that any payments or benefits received or to be received by the severance and other benefits provided for in Executive pursuant to this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code, as determined by the accounting firm that audited the Company prior to the relevant “change in ownership or control” within the meaning of Section 280G of the Code or another nationally known accounting or employee benefits consulting firm selected by the Company prior to such change in ownership or control (the “Accounting Firm”) and (ii) but for this SectionSection 8(j), would would, in the judgment of the Accounting Firm, be subject to the excise tax imposed by Section 4999 of the Code by reason of Section 280G of the Code, then, at your discretion, your severance and other then the Executive’s benefits under this Agreement shall be payable either either: (iA) in full, or (iiB) as to such lesser amount which would result in no portion of such severance and other payments or benefits being subject to the excise tax under Section 4999 of the Code, as determined by the Accounting Firm, 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 49994999 of the Code, results in the receipt by you Executive, on an after-tax basis, of the greatest amount of severance payments and benefits under this Agreement, as determined by the Accounting Firm, notwithstanding that all or some portion of such severance payments and benefits may be taxable under Section 4999 of the Code. Any reduction In the event that a lesser amount is paid under clause (ii)(B) above, then the elements of Executive’s payments hereunder shall be made reduced in such order (1) as the Company determines, in its sole discretion, has the least economic detriment to the Executive and (2) which does not result in the following manner: first a pro-rata reduction imposition of (i) cash any tax penalties under Section 409A on the Executive. To the extent the economic impact of reducing payments from one or more elements is equivalent, and subject to clause (2) of the preceding sentence, the reduction may be made pro rata by the Company in its sole discretion. In connection with making determinations hereunder, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the 280G CIC, including any noncompetition provisions that may apply to the Executive (whether set forth in this Agreement or otherwise), and the Company shall cooperate in the valuation of any such services, including any noncompetition provisions. Notwithstanding the foregoing, this Section 409A 8(j) shall not apply in respect of any event described in Section 280G(b)(2)(A)(i) of the Code as deferred compensation and (iia ‘‘280G CIC”) cash payments not subject that occurs prior to Section 409A May 16, 2020. In the event of the Codeany 280G CIC that occurs prior to May 16, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section2020, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application provisions of Sections 280G and 4999 of the Code. The Company and you Exhibit B hereto shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionapply.

Parachute Payments. In Notwithstanding anything to the contrary herein or in any Benefit Plan, in the event it shall be determined that any monetary amounts or benefits due or payable by the severance and other benefits provided for in this Agreement Company to Executive (whether paid or otherwise payable to you (ipayable, or due or distributed) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be are or will become subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the any excise tax under Section 4999 of the CodeCode (collectively “Excise Taxes”), whichever then the amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be reduced to the extent necessary so that no portion of such amounts or benefits shall be subject to the Excise Taxes, but only if (i) the net amount of such amounts and benefits, as so reduced (and after the imposition of the foregoing amounts, taking into account the applicable total amount of taxes under federal, state and local income law on such amounts and benefits), is greater than (ii) the excess of (A) the net amount of such amounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the amount of Excise Taxes to which Executive would be subject on such unreduced amounts and benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the absence of such reduction, the Company and Executive shall make good faith efforts to seek to identify and pursue reasonable action to avoid or reduce the amount of Excise Taxes; provided, however, that this sentence shall not be construed to require Executive to accept any further reduction in the amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 11(d) shall override and control any inconsistent provision in the Xxxxxx Products, Inc. Long-Term Capital Accumulation Plan. All determinations required to be made under this Section 11(d), including whether reduction is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an independent accounting firm selected by the Company in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. In the event that such Accounting Firm is serving as accountant or auditor for the individual, entity or group acting as the acquirer in a Change in Control, the Company shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to herein as the Accounting Firm). All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that no excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction Code is payable by Executive, the Company shall be made request that the Accounting Firm furnish Executive with written guidance that failure to report such excise tax on Executive’s applicable federal income tax return would not result in the following manner: first imposition of a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionnegligence or similar penalty.

Parachute Payments. In Notwithstanding anything in this Agreement to the event that contrary, the severance and other benefits provided for in amount of any payment or benefit to be received by Executive pursuant to this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, which would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement Code shall be payable either reduced (ibut not below zero) in fullby the amount, if any, necessary to prevent any part of any such payment or benefit received or to be received by Executive (ii) such foregoing payments or benefits referred to collectively as to such lesser amount which would result in no portion of such severance and other benefits the “Total Payments”), from being subject to such excise tax, but only if and to the excise tax under extent such reduction will also result in, after taking into account all applicable state and Federal taxes (computed at the highest applicable marginal rate), including any taxes payable pursuant to Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an a greater after-tax basis, benefit to Executive than the after-tax benefit to Executive of the greatest amount Total Payments computed without regard to any such reduction. For purposes of severance benefits under this Agreementthe foregoing, notwithstanding that all or some (a) no portion of such severance benefits may the Total Payments shall be taxable under taken into account which in the opinion of tax counsel selected by Executive (“Tax Counsel”) does not constitute a “parachute payment” within the meaning of Section 4999 280G(b)(2) of the Code. Any ; (b) any reduction in payments or benefits pursuant to this Agreement shall be made computed by taking into account, in the following manner: first a pro-rata reduction of (iaccordance with Section 280G(b)(4) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A that portion of the Code as deferred compensation and (iiTotal Payments which is reasonable compensation, within the meaning of Section 280G(b)(4) equity-based compensation not subject to Section 409A of the Code, in the opinion of Tax Counsel; (c) the value of any non-cash benefits or of any deferred or accelerated payments or benefits included in the Total Payments shall be determined by a public accounting firm, selected by Executive, in accordance with equity the principles of Section 280G(d)(3) and (4) of the Code and the Treasury Regulations promulgated thereunder; and (d) in the event of any uncertainty as to whether a reduction in Total Payments to Executive is required pursuant hereto, Employer shall initially make all being reduced in reverse order payments otherwise required to be paid to Executive hereunder, and any amounts so paid which are ultimately determined not to have been payable hereunder (other than as a loan to Executive), either (x) upon mutual agreement of vesting Executive and equity Employer, or (y) upon Tax Counsel furnishing Executive with its written opinion setting forth the amount of such payments not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is have been so subject. Unless the Company and you otherwise agree in writing, any determination required payable (other than as a loan to Executive under this Section 5), or (z) in the event a portion of the Total Payments shall be made determined by a court or an Internal Revenue Service proceeding to have otherwise been an “excess parachute payment,” the amount so determined in writing by the Company’s independent public accountants clause (the “Accountants”x), whose determination (y) or (z) shall constitute a loan by Employer to Executive under this Section 5, and Executive shall repay to Employer, within ten (10) business days after the time of such mutual agreement, such opinion is so furnished to Executive, or of such determination, as applicable, the amount of such loan plus interest thereon at the rate provided in Section 1274(b)(2)(B) of the Code for the period from the date of the initial payments to Executive to the date of such repayment by Executive. All fees and expenses of any Tax Counsel or accounting firm selected under this Section 5 shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required borne solely by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this SectionEmployer.

Parachute Payments. In a. Notwithstanding anything to the event contrary contained in this Agreement, to the extent that any amount, stock option, restricted stock, RSUs, other equity awards or benefits paid or distributed to the severance and other benefits provided for in Executive pursuant to this Agreement or otherwise payable to you any other agreement or arrangement between the Company and the Executive (icollectively, the “280G Payments”) (a) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code and (iib) but for this SectionSection 16, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement then the 280G Payments shall be payable either (i) in full, full or (ii) as to in such lesser amount which would result in no portion of such severance and other benefits 280G Payments being subject to the excise tax under Section 4999 of the Code, ; whichever of the foregoing amounts, taking into account the applicable federal, state and local income or excise taxes and (including the excise tax imposed by Section 4999, ) results in the Executive’s receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Executive and the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s an independent public accountants accountant selected by the Company (the “Accountants”), whose determination shall be conclusive and binding upon you the Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section, as well as any reasonable legal or accountant expenses, or any additional taxes, that the Executive may incur as a result of any calculation errors made by the Accountant and/or the Company in connection with the Code Section 4999 excise tax analysis contemplated by this Section.

Parachute Payments. In the event that the severance and other benefits provided for Notwithstanding anything in this Agreement or otherwise payable to you (i) constitute the contrary, if the Executive is a “disqualified individual” within the meaning set forth under Treasury Regulation Section 1.280G-1, Q/A-15, as determined by the Company, then any payment under this Agreement that constitutes an “excess parachute paymentspayment” within the meaning of Section 280G of the Code (an “Excess Parachute Payment”), shall be expressly conditioned upon disclosure to and approval by the Company’s stockholders in compliance with Treasury Regulation Section 1.280G-1, Q/A-7 (ii) but for this Section, would be subject it being understood that in connection with such approval process the Executive shall waive any entitlement to payment such that the excise tax imposed by Section 4999 shareholder vote must determine the right of the CodeExecutive to receive such payment). If such stockholder approval is not obtained, thenany such Excess Parachute Payment shall not be paid and shall be void ab initio. To the extent that the Company has equity securities that are readily tradable on an established securities market or otherwise, at your discretionso as to render the shareholder approval requirements referenced above unavailable, your severance and other benefits then any payment that the Executive is entitled to receive under this Agreement shall be or any other agreement, plan or arrangement that would (if paid), either alone or in the aggregate with other payments or benefits payable to the Executive, constitute an Excess Parachute Payment, will either (i) be delivered in full, or (ii) as be limited to such lesser amount which would result in the minimum extent necessary to ensure that no portion of such severance and thereof, along with any other payments or benefits being subject payable to the excise tax under Executive, will fail to be tax-deductible to the Company by reason of Section 4999 280G of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and or local income and employment taxes and the excise tax imposed by under Section 49994999 of the Code, results in the receipt by you the Executive, on an after-tax basis, of the greatest amount of severance benefits payments under this AgreementAgreement or any other agreement, plan or arrangement, notwithstanding that all or some portion of such severance benefits payments may be taxable subject to the excise tax imposed under Section 4999 of the Code. Any reduction All determinations required to be made hereunder shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, consultation with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionaccounting firm.

Parachute Payments. In Notwithstanding anything in this Agreement to the contrary, in the event that the severance and other provisions of Internal Revenue Code Section 280G relating to “excess parachute payments” shall be applicable to any payment or benefit received or to be received by the Employee, then the total amount of payments or benefits provided for in this Agreement or otherwise payable to you the Employee (the “Payments”) which are deemed to constitute parachute payments shall be either: (i) constitute “parachute payments” within the meaning of Section 280G full amount of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in fullPayments, or (ii) as to such lesser a reduced amount which would result in no portion of such severance and other benefits the Payments being subject to the excise tax under imposed pursuant to Section 4999 of the CodeInternal Revenue Code (the “Excise Tax”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by you the Employee, on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectbenefit. Unless the Company and you or the Employee otherwise agree in writing, any determination required under this Section 5.2(c)(1) shall be made in writing by the Company’s independent public accountants appointed by the Company and reasonably acceptable to the Employee (the “Accountants”), whose determination shall be conclusive and binding upon you the Employee and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur incur. In the event a reduction must be made in connection accordance with this paragraph, the reduction shall be made, first, from any calculations contemplated by this Sectionpayment made pursuant to paragraph (c), above, and, second, from any separation pay payment made pursuant to paragraph (b), above, but only to the extent such payment is determined to be includible in the excess parachute payment amount and only to the extent necessary.

Parachute Payments. In the event that the severance and other benefits provided for in this Amended Agreement or otherwise payable to you Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your Executive’s discretion, your Executive’s severance and other benefits under this Amended Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Executive on an after-tax basis, of the greatest amount of severance benefits under this Amended Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-pro rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with . Reduction in either cash payments or equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section compensation benefits shall be made in writing by pro rata between and among benefits which are subject to Section 409A of the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive Code and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 benefits which are exempt from Section 409A of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance and other benefits provided for Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or otherwise payable to you distribution in the nature of compensation (i) constitute “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Code and Tax Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement (iiincluding, without limitation, the accelerated vesting of incentive or equity awards held by the Executive) but for this Section, or otherwise would be subject to the excise tax imposed by Section 4999 of the Codecode, then, at your discretion, your severance and other benefits under this Agreement shall be payable either then the amount of “parachute payments” (i) as defined in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 280G of the Code, whichever ) payable or required to be provided to the Executive shall be automatically reduced to the minimum extent necessary to avoid imposition of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the such excise tax imposed (with the types of benefits or compensation that are reduced to be determined by the Company at its discretion, which shall be exercised first with respect to compensation and benefits that are not exempt from Code Section 4999409A); provided that this reduction shall not apply if the Executive would be better off, results in the receipt by you on an a net after-tax basis, receiving the parachute payments that would otherwise be reduce and paying such excise tax. Notwithstanding the foregoing, the Company shall use its reasonable efforts to have any payments or distributions that would be reduced or eliminated as a result of the greatest amount application of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing 4.9 approved by the Company’s independent public accountants shareholders in the manner contemplated by Q&A 7 of Treasury Regulation Section 1.280G-1. All determinations required to be made under this Section 4.8 shall be made by the Company’s accounting firm (the “AccountantsAccounting Firm”); provided that the Executive may select which, whose determination if any, parachute payments shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may 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 Codereduced. The Company and you Accounting Firm shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver provide detailed supporting calculations both to the Company and you sufficient documentation for you to rely on it for purpose the Executive. All fees and expenses of filing your tax returnsthe Accounting Firm shall be borne solely by the Company. The Absent manifest error, any determination by the Accounting Firm shall be binding upon the Company shall bear all costs and the Accountants may reasonably incur in connection with any calculations contemplated by this SectionExecutive.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In Anything in the Agreement to the contrary notwithstanding, in the event it shall be determined that any payments or distribution in the severance and other benefits provided for in this Agreement or otherwise payable to you nature of compensation (i) constitute “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Code and Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement (iiincluding, without limitation, the accelerated vesting of incentive or equity awards held by the Executive) but for this Section, or otherwise would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either then the amount of “parachute payments” (i) as defined in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 280G of the Code, whichever ) payable or required to be provided to the Executive shall be automatically reduced to the minimum extent necessary to avoid imposition of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the such excise tax imposed (with the types of benefits or compensation that are reduced to be determined by the Company at its discretion, which shall be exercised first with respect to compensation and benefits that are not exempt from Code Section 4999409A); provided that this reduction shall not apply if the Executive would be better off, results in the receipt by you on an a net after-tax basis, of receiving the greatest amount of severance benefits under this Agreementparachute payments that would otherwise be reduced and paying such excise tax. Notwithstanding the foregoing, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, Executive shall use their reasonable efforts to have any determination required under payments or distributions that would be reduced or eliminated as a result of the application of this Section shall be made in writing 4.9 approved by the Company’s independent public accountants shareholders in the manner contemplated by Q&A 7 of Treasury Regulation Section 1.280G 1. All determinations required to be made under this Section 4.9 shall be made by the Company’s accounting firm (the “AccountantsAccounting Firm”); provided that the Executive may select which, whose determination if any, parachute payments shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may 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 Codereduced. The Company and you Accounting Firm shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver provide detailed supporting calculations both to the Company and you sufficient documentation for you to rely on it for purpose the Executive. All fees and expenses of filing your tax returnsthe Accounting Firm shall be borne solely by the Company. The Absent manifest error, any determination by the Accounting Firm shall be binding upon the Company shall bear all costs and the Accountants may reasonably incur in connection with any calculations contemplated by this SectionExecutive.

Parachute Payments. In Notwithstanding anything in this Agreement to the event that contrary, the severance and other benefits provided for in amount of any payment or benefit to be received by Executive pursuant to this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, which would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement Code shall be payable either reduced (ibut not below zero) in fullby the amount, if any, necessary to prevent any part of any such payment or benefit received or to be received by Executive (ii) such foregoing payments or benefits referred to collectively as to such lesser amount which would result in no portion of such severance and other benefits the “Total Payments”), from being subject to such excise tax, but only if and to the excise tax under extent such reduction will also result in, after taking into account all applicable state and Federal taxes (computed at the highest applicable marginal rate), including any taxes payable pursuant to Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an a greater after-tax basis, benefit to Executive than the after-tax benefit to Executive of the greatest amount Total Payments computed without regard to any such reduction. For purposes of severance benefits under this Agreementthe foregoing, notwithstanding that all or some (a) no portion of such severance benefits may the Total Payments shall be taxable under taken into account which in the opinion of tax counsel selected by Executive (“Tax Counsel”) does not constitute a “parachute payment” within the meaning of Section 4999 280G(b)(2) of the Code. Any ; (b) any reduction in payments or benefits pursuant to this Agreement shall be made computed by taking into account, in the following manner: first a pro-rata reduction of (iaccordance with Section 280G(b)(4) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A that portion of the Code as deferred compensation and (iiTotal Payments which is reasonable compensation, within the meaning of Section 280G(b)(4) equity-based compensation not subject to Section 409A of the Code, in the opinion of Tax Counsel; (c) the value of any non-cash benefits or of any deferred or accelerated payments or benefits included in the Total Payments shall be determined by a public accounting firm, selected by Executive, in accordance with equity the principles of Section 280G(d)(3) and (4) of the Code and the Treasury Regulations there; and (d) in the event of any uncertainty as to whether a reduction in Total Payments to Executive is required pursuant hereto, the Employer shall initially make all being reduced in reverse order payments otherwise required to be paid to Executive hereunder, and any amounts so paid which are ultimately determined not to have been payable hereunder (other than as a loan to Executive), either (x) upon mutual agreement of vesting Executive and equity Employer, or (y) upon Tax Counsel furnishing Executive with its written opinion setting forth the amount of such payments not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is have been so subject. Unless the Company and you otherwise agree in writing, any determination required payable (other than as a loan to Executive under this Section 5), or (z) in the event a portion of the Total Payments shall be made determined by a court or an Internal Revenue Service proceeding to have otherwise been an “excess parachute payment,” to the extent permitted by law, the amount so determined in writing by the Company’s independent public accountants (the “Accountants”x), whose determination (y) or (z) shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required constitute a loan by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish Employer to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination Executive under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.this

Parachute Payments. In the event that the acceleration and severance and other benefits provided for in this Agreement or letter agreement and otherwise payable to you (iA) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (iiB) but for this Sectionparagraph, would be subject to the excise tax imposed by Section 4999 of the Code, then, at then your discretion, your severance and other benefits under this Agreement hereunder shall be payable either either: (iX) in full, or (iiY) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreementhereunder, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section paragraph shall be made in writing by the Company’s independent public accountants designated by the Company (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Sectionparagraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsparagraph. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionparagraph. In the event that a reduction in payments and/or benefits is required under this paragraph, such reduction shall occur in the following order: (1) reduction of cash payments; (2) reduction of acceleration of vesting of options and shares; and (3) reduction of other benefits paid to you. If the acceleration of vesting of options and shares is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the highest price option grant or highest purchase price per share down to the lowest priced option grant or lowest purchase price per share.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable or provided to you Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code (the “Code”), and (ii) but for this SectionSection 7.3, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then, at your discretion, your severance and other then the Executive’s benefits under this Agreement shall be payable either (ia) delivered in full, or (iib) delivered as to such lesser amount extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by you the Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreementbenefits, notwithstanding that all or some portion of such severance Plan benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you the Executive otherwise agree in writing, any determination required under this Section shall 7.3 will be made in writing by a national “Big Four” accounting firm selected by the Company’s independent public accountants Company or such other person or entity to which the parties mutually agree (the “Accountants”), whose determination shall will be conclusive and binding upon you the Executive and the Company for all purposes. For purposes of making the calculations required by this SectionSection 7.3, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this SectionSection 7.3. Any reduction in payments and/or benefits required by this Section 7.3 shall occur in the following order: (1) reduction of cash payments; and (2) reduction of equity acceleration (full-value awards first, then stock options), and (3) other benefits paid to the Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for the Executive’s equity awards.

Parachute Payments. In Notwithstanding anything contained in this Agreement to the event contrary, to the extent that the severance payments and other benefits provided for in under this Agreement or otherwise payable to you Employee (such payments or benefits are collectively referred to as the “Payments”) would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to Employee shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Employee shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 9(d), “net after-tax benefit” shall mean (i) the Payments which Employee receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code and Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Employee (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Employee and reasonably acceptable to the Company (which may be, but for will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the affected Employee and the Company within fifteen (15) calendar days after Employee’s date of Separation from Service. If the Accounting Firm determines that such reduction is required by this SectionSection 9(d) and no Payment constitutes non-qualified deferred compensation that is subject to Section 409A of the Code, would Employee, in Employee’s sole and absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed Company shall pay such reduced amount to him. If the Accounting Firm determines that a reduction is required by this Section 49999(d), results in and any Payment constitutes a “deferral of compensation” within the receipt by you on an after-tax basis, meaning of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata then the Payments shall be reduced in the following order: (a) reduction in the cash severance payments described herein (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments); (b) reduction in any other cash payments payable to Employee (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments); (c) cancellation of (i) equity-based compensation subject to Section 409A acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the Code as deferred compensation underlying equity; and (iid) equity-based compensation cancellation of acceleration of vesting of equity awards not subject covered under (c) above; provided, however that in the event that acceleration of vesting of equity awards is to Section 409A be cancelled, such acceleration of vesting shall be cancelled in the Code, with equity all being reduced in reverse order of vesting and the date of grant of such equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before awards, that is, later equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section awards shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectioncanceled before earlier equity awards.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with . Reduction in either cash payments or equity all being reduced in reverse order of vesting compensation benefits shall be made pro-rata between and equity not among benefits which are subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectSection 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance and other benefits provided for in If any payment or benefit you would receive under this Agreement or otherwise payable to you ("Payment") would (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, (the "Code"), or any comparable successor provision, and (ii) but for this Section, section would be subject to the excise tax imposed by Section 4999 of the Code, thenor any comparable successor provision (the "Excise Tax"), at your discretion, your severance and other then Executive's benefits under this Agreement hereunder shall be payable either (i) provided to you in full, or (ii) provided to you as to such lesser amount extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the CodeExcise Tax, 2 whichever of the foregoing amounts, when taking into account the applicable federal, state state, local and local foreign income taxes and employment taxes, the excise tax imposed by Section 4999Excise Tax, and any other applicable taxes, results in the receipt by you you, on an after-tax basis, of the greatest amount of severance benefits under this Agreementbenefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectExcise Tax. Unless you and the Company and you otherwise agree in writing, any determination required under this Section section shall be made in writing in good faith by a qualified third party (the "Professional Service Firm") selected by the Company’s independent public accountants (. In the “Accountants”)event of a reduction of benefits hereunder, whose determination benefits payable in cash shall be conclusive and binding upon you and the Company for all purposesreduced first. For purposes of making the calculations required by this Sectionsection, the Accountants Professional Service Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The You and the Company and you shall furnish to the Accountants Professional Service Firm such information and documents as the Accountants Professional Service Firm may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnssection. The Company shall bear all costs the Accountants Professional Service Firm may reasonably incur in connection with any calculations contemplated by this section. If, notwithstanding any reduction described in this section, the IRS determines that you are liable for the Excise Tax as a result of the receipt of the payment of benefits as described above, then you shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that you challenge the final IRS determination, a final judicial determination, a portion of the payment equal to the "Repayment Amount." The Repayment Amount with respect to the payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that your net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in your net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, you shall pay the Excise Tax. Notwithstanding any other provision of this Parachute Payments Section, if (i) there is a reduction in the payment of benefits as described in this section, (ii) the IRS later determines that you are liable for the Excise Tax, the payment of which would result in the maximization of your net after-tax proceeds (calculated as if your benefits had not previously been reduced), and (iii) you pay the Excise Tax, then the Company shall pay to you those benefits which were reduced pursuant to this section contemporaneously or as soon as administratively possible after you pay the Excise Tax so that your net after-tax proceeds with respect to the payment of benefits is maximized. Except as provided herein, the terms of the Employment Agreement remain in full force and effect.

Parachute Payments. In As promptly as practicable after the event that the severance execution and other benefits provided for in delivery of this Agreement or otherwise payable (but no later than five Business Days prior to you the Closing Date), the Company shall submit to the stockholders of the Company (iin a manner reasonably satisfactory to Parent) constitute “for execution and approval by such number of stockholders of the Company as is required by the terms of Section 280G(b)(5)(B) of the Code a written consent in favor of a single proposal to render the parachute payments” within the meaning payment provisions of Section 280G of the Code and the Treasury Regulations thereunder (iicollectively, “Section 280G”) but for this Sectioninapplicable to any payments or benefits provided pursuant to Company Benefit Plans, other Company Contracts or otherwise in connection with any of the Contemplated Transactions that might result, separately or in the aggregate, in the payment of any amount, or the provision of any benefit, that would not be deductible by reason of Section 280G or that would be subject to the an excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax Tax under Section 4999 of the CodeCode (determined without regard to the exceptions contained in Section 280G(b)(4)) or any corresponding provision of any state, whichever of the foregoing amountslocal or foreign Legal Requirement (collectively, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “AccountantsSection 280G Payments”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear seek any such stockholder approval in a manner that satisfies all costs applicable requirements of Section 280G(b)(5)(B) of the Accountants may reasonably incur Code and the Treasury Regulations thereunder. Promptly after execution of this Agreement (and in connection with any calculations event no later than one day prior to the submission to the stockholders of the Company of the written consent described in this Section 5.2(c) and any related disclosure of the Section 280G Payments), the Company shall deliver to Parent waivers, in form and substance satisfactory to Parent, duly executed by each Person who might receive any Section 280G Payment. The form and substance of all stockholder approval documents contemplated by this SectionSection 5.2(c), including the waivers, disclosure statement and written consent, and any mathematical analysis of the Section 280G Payments, shall be subject to the prior review and approval of Parent. The Company shall (a) provide such documentation and information to Parent for its review and approval no later than five Business Days prior to soliciting waivers from the “disqualified individuals” and (b) implement all reasonable and timely comments from Parent thereon. If any of the waived Section 280G Payments fail to be approved by the voting stockholders as contemplated above, such waived Section 280G Payments shall not be made or provided.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and (ii) but for this Sectionsubparagraph, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, then your severance and other benefits under this Agreement shall will be payable either either: (ia) delivered in full, or (iib) delivered as to such lesser amount extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreementbenefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation Unless you and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you Cepheid otherwise agree in writing, any determination required under this Section shall subparagraph will be made in writing by the CompanyCepheid’s independent public accountants immediately prior to any change of control or such other person or entity to which the parties mutually agree (the “Accountants”), whose determination shall will be conclusive and binding upon you and the Company Cepheid for all purposes. For purposes of making the calculations required by this Sectionsubparagraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, reasonable good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company You and you shall Cepheid will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Sectionsubparagraph. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall Cepheid will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionsubparagraph.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your Executive’s severance and other benefits under this Agreement shall be payable either (i) delivered in full, or (ii) delivered as to such lesser amount extent which would result in no portion of such severance and other benefits being 10 Insert the applicable period: CEO: Eighteen (18) months, SVPs: Twelve (12) months and VPs: Nine (9) months. 11 Insert the applicable percentage: CEO: one hundred and fifty percent (150%), SVPs: one hundred percent (100%) and VPs: seventy-five percent (75%). 12 Insert the applicable period: CEO: Eighteen (18) months, SVPs: Twelve (12) months and VPs: Nine (9) months. subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance a Participant’s Cash Retention Bonus payable to a Participant and any other benefits provided for in this Agreement or otherwise payable to you a Participant (i) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and (ii) but for this Sectionsubparagraph, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall then the Participant’s Cash Retention Bonus will be payable either either: (ia) delivered in full, or (iib) delivered as to such lesser amount extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Participant on an after-tax basis, of the greatest amount of severance benefits under this Agreementbenefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any In the event that a reduction is required, the reduction shall be made in the following manner: applied first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments any benefits that are not subject to Section 409A of the Code, and second a pro rata cancellation of then shall be applied to benefits (iif any) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not that are subject to Section 409A of the Code, with equity all being reduced the benefits payable latest in reverse order of vesting and equity not time subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectreduction first. Unless the Participant and the Company and you otherwise agree in writing, any determination required under this Section shall subparagraph will be made in writing by the Company’s independent public accountants immediately prior to any change of control or such other person or entity to which the parties mutually agree (the “Accountants”), whose determination shall will be conclusive and binding upon you and the Company Participant for all purposes. For purposes of making the calculations required by this Sectionsubparagraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, reasonable good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall Participant will be required to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionsubparagraph.

Parachute Payments. In Notwithstanding anything to the contrary herein or in any Benefit Plan, in the event it shall be determined that any monetary amounts or benefits due or payable by the severance and other benefits provided for in this Agreement Company to Executive (whether paid or otherwise payable to you (ipayable, or due or distributed) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be are or will become subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the any excise tax under Section 4999 of the CodeCode (collectively “Excise Taxes”), whichever then the amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be reduced to the extent necessary so that no portion of such amounts or benefits shall be subject to the Excise Taxes, but only if (i) the net amount of such amounts and benefits, as so reduced (and after the imposition of the foregoing amounts, taking into account the applicable total amount of taxes under federal, state and local income law on such amounts and benefits), is greater than (ii) the excess of (A) the net amount of such amounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the amount of Excise Taxes to which Executive would be subject on such unreduced amounts and benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the absence of such reduction, the Company and Executive shall make good faith efforts to seek to identify and pursue reasonable action to avoid or reduce the amount of Excise Taxes; provided, however, that this sentence shall not be construed to require Executive to accept any further reduction in the amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 8(d) shall override and control any inconsistent provision in any other agreement between the Executive and the Company and any other Company plan or program. All determinations required to be made under this Section 8(d), including whether reduction is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an independent accounting firm selected by the Company in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that no excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction Code is payable by Executive, the Company shall be made request that the Accounting Firm furnish Executive with written guidance that failure to report such excise tax on Executive’s applicable federal income tax return would not result in the following manner: first imposition of a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionnegligence or similar penalty.

Parachute Payments. In the event that the severance and other benefits provided for Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or otherwise payable to you distribution in the nature of compensation (i) constitute “parachute payments” within the meaning of Section 280G section 280G(b)(2) of the Code and Tax Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement (iiincluding, without limitation, the accelerated vesting of incentive or equity awards held by the Executive) but for this Section, or otherwise would be subject to the excise tax imposed by Section section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either then the amount of “parachute payments” (i) as defined in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 section 280G of the Code) payable or required to be provided to the Executive shall be automatically reduced to the minimum extent necessary to avoid imposition of such excise tax (with the types of benefits or compensation that are reduced to be determined by the Company at its discretion, whichever which shall be exercised first with respect to compensation and benefits that are not exempt from section 409A of the foregoing amountsCode); provided that this reduction shall not apply if the Executive would be better off, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an a net after-tax basis, receiving the parachute payments that would otherwise be reduced and paying such excise tax. Notwithstanding the foregoing, the Company shall use its reasonable efforts to have any payments or distributions that would be reduced or eliminated as a result of the greatest amount application of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing 4.8 approved by the Company’s independent public accountants shareholders in the manner contemplated by Q&A 7 of Treasury Regulation section 1.280G-1. All determinations required to be made under this Section 4.8 shall be made by the Company’s accounting firm (the “AccountantsAccounting Firm”); provided that the Executive may select which, whose determination if any, parachute payments shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may 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 Codereduced. The Company and you Accounting Firm shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver provide detailed supporting calculations both to the Company and you sufficient documentation for you to rely on it for purpose the Executive. All fees and expenses of filing your tax returnsthe Accounting Firm shall be borne solely by the Company. The Absent manifest error, any determination by the Accounting Firm shall be binding upon the Company shall bear all costs and the Accountants may reasonably incur in connection with any calculations contemplated by this SectionExecutive.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “"parachute payments” " within the meaning of Section 280G 2800 of the Code and (ii) but for this Sectionsection, would be subject to the excise tax imposed by Section 4999 of the Code, then, at then your discretion, your severance and other benefits under this Agreement or otherwise shall be payable either (ia) in full, or (iib) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the an excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the your receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreementagreement or otherwise, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any In applying this principle, the reduction shall be made in a manner consistent with the following manner: first a pro-rata reduction requirements of (i) cash payments subject to Code Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code409A, and second a if more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectrata. Unless you and the Company and you otherwise agree in writing, any determination required under this Section section shall be made in writing by the Company’s 's independent public accountants (the “"Accountants”"), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Sectionsection, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The You and the Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnssection. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionsection as well as any costs incurred by you with the Accountants for tax planning under Sections 280G and 4999 of the Code.

Parachute Payments. In the event that the acceleration and severance and other benefits provided for in this Agreement or otherwise payable to you (iA) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (iiB) but for this Sectionparagraph, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other then Employee’s benefits under this Agreement hereunder shall be payable either either: (iX) in full, or (iiY) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Employee on an after-tax basis, of the greatest amount of severance benefits under this Agreementhereunder, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you Employee otherwise agree in writing, any determination required under this Section paragraph shall be made in writing by the Company’s independent public accountants designated by the Company (the “Accountants”), whose determination shall be conclusive and binding upon you Employee and the Company for all purposes. For purposes of making the calculations required by this Sectionparagraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and you Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsparagraph. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionparagraph. In the event that a reduction in payments and/or benefits is required under this section 4, such reduction shall occur in the following order: (1) reduction of cash payments; (2) reduction of acceleration of vesting of options and shares; and (3) reduction of other benefits paid to Employee. If the acceleration of vesting of options and shares is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the highest price option grant or highest purchase price per share down to the lowest priced option grant or lowest purchase price per share.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Sectionsection, would be subject to the excise tax imposed by Section 4999 of the Code, then, at then your discretion, your severance and other benefits under this Agreement or otherwise shall be payable either (ia) in full, or (iib) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the an excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the your receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreementagreement or otherwise, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any In applying this principle, the reduction shall be made in a manner consistent with the following manner: first a pro-rata reduction requirements of (i) cash payments subject to Code Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code409A, and second a if more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectrata. Unless the Company you and you Freshworks otherwise agree in writing, any determination required under this Section section shall be made in writing by the Company’s Freshworks’ independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company Freshworks for all purposes. For purposes of making the calculations required by this Sectionsection, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company You and you Freshworks shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Sectionsection. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company Freshworks shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionsection as well as any costs incurred by you with the Accountants for tax planning under Sections 280G and 4999 of the Code.

Parachute Payments. In (a) Subject to Article III, Section 5(b) below, notwithstanding anything in this Agreement to the event that contrary, the severance and other benefits provided for in amount of any payment or benefit to be received by Executive pursuant to this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, which would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement Code shall be payable either reduced (ibut not below zero) in fullby the amount, if any, necessary to prevent any part of any such payment or benefit received or to be received by Executive (ii) such foregoing payments or benefits referred to collectively as to such lesser amount which would result in no portion of such severance and other benefits the “Total Payments”), from being subject to such excise tax, but only if and to the excise tax under extent such reduction will also result in, after taking into account all applicable state and Federal taxes (computed at the highest applicable marginal rate), including any taxes payable pursuant to Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an a greater after-tax basis, benefit to Executive than the after-tax benefit to Executive of the greatest amount Total Payments computed without regard to any such reduction. For purposes of severance benefits under this Agreementthe foregoing, notwithstanding that all or some (a) no portion of such severance benefits may the Total Payments shall be taxable under taken into account which in the opinion of tax counsel selected by Executive (“Tax Counsel”) does not constitute a “parachute payment” within the meaning of Section 4999 280G(b)(2) of the Code. Any ; (b) any reduction in payments or benefits pursuant to this Agreement shall be made computed by taking into account, in the following manner: first a pro-rata reduction of (iaccordance with Section 280G(b)(4) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A that portion of the Code as deferred compensation and (iiTotal Payments which is reasonable compensation, within the meaning of Section 280G(b)(4) equity-based compensation not subject to Section 409A of the Code, in the opinion of Tax Counsel; (c) the value of any non-cash benefits or of any deferred or accelerated payments or benefits included in the Total Payments shall be determined by a public accounting firm, selected by Executive, in accordance with equity the principles of Section 280G(d)(3) and (4) of the Code and the Treasury Regulations promulgated thereunder; and (d) in the event of any uncertainty as to whether a reduction in Total Payments to Executive is required pursuant hereto, Employer shall initially make all being reduced in reverse order payments otherwise required to be paid to Executive hereunder, and any amounts so paid which are ultimately determined not to have been payable hereunder (other than as a loan to Executive), either (x) upon mutual agreement of vesting Executive and equity Employer, or (y) upon Tax Counsel furnishing Executive with its written opinion setting forth the amount of such payments not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is have been so subject. Unless the Company and you otherwise agree in writing, any determination required payable (other than as a loan to Executive under this Section 5(a)), or (z) in the event a portion of the Total Payments shall be made determined by a court or an Internal Revenue Service proceeding to have otherwise been an “excess parachute payment,” to the extent permitted by law, the amount so determined in writing by the Company’s independent public accountants clause (the “Accountants”x), whose determination (y) or (z) shall constitute a loan by Employer to Executive under this Section 5(a), and Executive shall repay to Employer, within ten (10) business days after the time of such mutual agreement, such opinion is so furnished to Executive, or of such determination, as applicable, the amount of such loan plus interest thereon at the rate provided in Section 1274(b)(2)(B) of the Code for the period from the date of the initial payments to Executive to the date of such repayment by Executive. All fees and expenses of any Tax Counsel or accounting firm selected under this Section 5(a) shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required borne solely by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this SectionEmployer.

Parachute Payments. In Notwithstanding anything in this Agreement to the event that contrary, the severance and other benefits provided for in amount of any payment or benefit to be received by Executive pursuant to this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, which would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement Code shall be payable either reduced (ibut not below zero) in fullby the amount, if any, necessary to prevent any part of any such payment or benefit received or to be received by Executive (ii) such foregoing payments or benefits referred to collectively as to such lesser amount which would result in no portion of such severance and other benefits the “Total Payments”), from being subject to such excise tax, but only if and to the excise tax under extent such reduction will also result in, after taking into account all applicable state and Federal taxes (computed at the highest applicable marginal rate), including any taxes payable pursuant to Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an a greater after-tax basis, benefit to Executive than the after-tax benefit to Executive of the greatest amount Total Payments computed without regard to any such reduction. For purposes of severance benefits under this Agreementthe foregoing, notwithstanding that all or some (a) no portion of such severance benefits may the Total Payments shall be taxable under taken into account which in the opinion of tax counsel selected by Executive (“Tax Counsel”) does not constitute a “parachute payment” within the meaning of Section 4999 280G(b)(2) of the Code. Any ; (b) any reduction in payments or benefits pursuant to this Agreement shall be made computed by taking into account, in the following manner: first a pro-rata reduction of (iaccordance with Section 280G(b)(4) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A that portion of the Code as deferred compensation and (iiTotal Payments which is reasonable compensation, within the meaning of Section 280G(b)(4) equity-based compensation not subject to Section 409A of the Code, in the opinion of Tax Counsel; (c) the value of any non-cash benefits or of any deferred or accelerated payments or benefits included in the Total Payments shall be determined by a public accounting firm, selected by Executive, in accordance with equity the principles of Section 280G(d)(3) and (4) of the Code and the Treasury Regulations there; and (d) in the event of any uncertainty as to whether a reduction in Total Payments to Executive is required pursuant hereto, the Employer shall initially make all being reduced in reverse order payments otherwise required to be paid to Executive hereunder, and any amounts so paid which are ultimately determined not to have been payable hereunder (other than as a loan to Executive), either (x) upon mutual agreement of vesting Executive and equity Employer, or (y) upon Tax Counsel furnishing Executive with its written opinion setting forth the amount of such payments not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is have been so subject. Unless the Company and you otherwise agree in writing, any determination required payable (other than as a loan to Executive under this Section 5), or (z) in the event a portion of the Total Payments shall be made determined by a court or an Internal Revenue Service proceeding to have otherwise been an “excess parachute payment,” to the extent permitted by law, the amount so determined in writing by the Company’s independent public accountants (the “Accountants”x), whose determination (y) or (z) shall constitute a loan by Employer to Executive under this Section 5, and Executive shall repay to Employer, within ten (10) business days after the time of such mutual agreement, such opinion is so furnished to Executive, or of such determination, as applicable, the amount of such loan plus interest thereon at the rate provided in Section 1274(b)(2)(B) of the Code for the period from the date of the initial payments to Executive to the date of such repayment by Executive. All fees and expenses of any Tax Counsel or accounting firm selected under this Section 5 shall be conclusive borne solely by Employer. All fees and binding upon you and the Company for all purposes. For purposes expenses of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination any accounting firm selected under this Section. The Accountants Section 5 shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated be borne solely by this SectionEmployer.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your Employee’s discretion, your Employee’s severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Employee on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-pro rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with . Reduction in either cash payments or equity all being reduced in reverse order of vesting compensation benefits shall be made prorata between and equity not among benefits which are subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectSection 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and you Employee otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Employee and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Employee shall furnish to the Accountants such information and documents as the {01368/0003/00214921.1} 9000000.2 Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance and other or benefits provided for in this Agreement or otherwise payable to you the Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this SectionSection 8.9, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other then Executive’s benefits under this Agreement shall will be payable either (ia) delivered in full, or (iib) delivered as to such lesser amount extent which would result in no portion of such severance and other payments or benefits being subject to the excise tax under Section 4999 of the Code, ; whichever of the foregoing amounts, taking into account the applicable federal, state state, and local income and employment taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by you Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreementbenefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any If a reduction shall be made in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following mannerorder: first a pro-rata reduction of (i) reduction of cash payments subject to Section 409A of the Code as deferred compensation and payments; (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of accelerated vesting of equity awards; or (iiii) equity-based compensation subject to Section 409A of reduction in employee benefits. In the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order event that acceleration of vesting and of equity not subject award compensation is to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity be reduced, such acceleration of vesting will be cancelled in the order that is so subjectprovides the greatest after-tax value to the Executive. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section shall 8.9 will be made in writing by a nationally recognized certified professional services firm selected by the Company’s independent public accountants , or such other person or entity to which the parties mutually agree (the “AccountantsFirm”)) immediately prior to a Change in Control, whose determination shall will be conclusive and binding upon you Executive and the Company for all purposespurposes absent manifest error. For purposes of making the calculations required by this SectionSection 8.9, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and you shall the Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsSection 8.9. The Company shall will bear all costs the Accountants Firm may reasonably incur in connection with any calculations contemplated by this SectionSection 8.9.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you the Executive (i) constitute “parachute payments” within the meaning of Internal Revenue Code Section 280G of the Code and (“Section 280G”) and, (ii) but for this Section, would be subject to the excise tax imposed by Internal Revenue Code Section 4999 of the Code(“Section 4999”), then, at your the Executive’s discretion, your the severance and other benefits under this Agreement shall be payable either (i) in full, full or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you the Executive on an after-tax basis, basis of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code4999. Any reduction shall be made in the following manner: first first, a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code409A; second, and second a pro pro-rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code409A, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation Section 1.280G- Q & A Q&A 24(c) of the regulations promulgated under Section 280G being reduced before equity that is so subject. Unless the Company and you the Executive otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you the Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections Section 280G and 4999 of the CodeSection 4999. The Company and you the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you the Executive sufficient documentation for you the Executive to rely on it for purpose of filing your his tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance and other benefits provided for in The parties to this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G recognize that certain provisions of the Code 1990 Incentive Stock Compensation Plan, as amended, and the 1995 Incentive Stock Compensation Plan for Nonexecutive Employees (iithe "Stock Plans") but for this Section, would require a reduction in payments or benefits under such Stock Plans to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"); such reduction will be made, thenhowever, at your discretiononly if, your severance and by reason of such reduction, Employee's net after-tax benefit shall exceed the net after-tax benefit if such reduction were not made. It is the intent of the parties that, notwithstanding the above or any provision of this Agreement or any other plan or program of the Company to the contrary, in the event any payment to be made and/or any benefits to be provided to or on behalf of Employee pursuant to this Agreement, when aggregated with payments and/or benefits under this Agreement shall be payable either (i) in fullthe Stock Plans or any other plans or programs, or (ii) as to such lesser amount which would result in no portion constitute an "excess parachute payment", within the meaning of such severance and other benefits being subject to the excise tax under Section 4999 280G of the Code, whichever Employee may elect in advance which payment and/or benefit will be reduced in whole or in part so that the aggregated payments and/or benefits received will not constitute excess parachute payments. Such reduction will only be made, however, if by reason of the foregoing amountssuch reductions, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an Employee's net after-tax basis, benefit shall exceed Employee's net after-tax benefit if such reductions were not made. The determination of the greatest whether any amount of severance benefits or benefit under this Agreement, notwithstanding that all or some portion of Agreement would be such severance benefits may be taxable under Section 4999 of the Code. Any reduction an excess parachute payment shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless by tax counsel selected by the Company and you otherwise agree in writing, any reasonably acceptable to Employee. The costs of obtaining such determination required under this Section shall be made in writing borne by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance and other benefits provided for Notwithstanding anything contained in this Agreement to the contrary, to the extent that payments and benefits provided under this Agreement to Employee (such payments or otherwise payable benefits are collectively referred to you as the “Payments”) would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to Employee shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by such Employee shall exceed the net after-tax benefit received by her if no such reduction was made. For purposes of this Section 9(b), “net after-tax benefit” shall mean (i) the Payments which such Employee receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code and Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid such Employee (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Employee and reasonably acceptable to the Company (which may be, but for will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the affected Employee and the Company within fifteen (15) calendar days after Employee’s date of termination. If the Accounting Firm determines that such reduction is required by this SectionSection 9(b), would Employee, in Employee’s sole and absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish pay such reduced amount to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionher.

Parachute Payments. In Notwithstanding anything in this Agreement to the event that contrary, the severance and other benefits provided for in amount of any payment or benefit to be received by Executive pursuant to this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, which would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement Code shall be payable either reduced (ibut not below zero) in fullby the amount, if any, necessary to prevent any part of any such payment or benefit received or to be received by Executive (ii) such foregoing payments or benefits referred to collectively as to such lesser amount which would result in no portion of such severance and other benefits the “Total Payments”), from being subject to such excise tax, but only if and to the excise tax under extent such reduction will also result in, after taking into account all applicable state and Federal taxes (computed at the highest applicable marginal rate), including any taxes payable pursuant to Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an a greater after-tax basis, benefit to Executive than the after-tax benefit to Executive of the greatest amount Total Payments computed without regard to any such reduction. For purposes of severance benefits under this Agreementthe foregoing, notwithstanding that all or some (a) no portion of such severance benefits may the Total Payments shall be taxable under taken into account which in the opinion of tax counsel selected by Executive (“Tax Counsel”) does not constitute a “parachute payment” within the meaning of Section 4999 280G(b)(2) of the Code. Any ; (b) any reduction in payments or benefits pursuant to this Agreement shall be made computed by taking into account, in the following manner: first a pro-rata reduction of (iaccordance with Section 280G(b)(4) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A that portion of the Code as deferred compensation and (iiTotal Payments which is reasonable compensation, within the meaning of Section 280G(b)(4) equity-based compensation not subject to Section 409A of the Code, in the opinion of Tax Counsel; (c) the value of any non-cash benefits or of any deferred or accelerated payments or benefits included in the Total Payments shall be determined by a public accounting firm, selected by Executive, in accordance with equity the principles of Section 280G(d)(3) and (4) of the Code and the Treasury Regulations there; and (d) in the event of any uncertainty as to whether a reduction in Total Payments to Executive is required pursuant hereto, the Employer shall initially make all being reduced in reverse order payments otherwise required to be paid to Executive hereunder, and any amounts so paid which are ultimately determined not to have been payable hereunder (other than as a loan to Executive), either (x) upon mutual agreement of vesting Executive and equity Employer, or (y) upon Tax Counsel furnishing Executive with its written opinion setting forth the amount of such payments not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is have been so subject. Unless the Company and you otherwise agree in writing, any determination required payable (other than as a loan to Executive under this Section 6.2), or (z) in the event a portion of the Total Payments shall be made determined by a court or an Internal Revenue Service proceeding to have otherwise been an “excess parachute payment,” the amount so determined in writing by the Company’s independent public accountants (the “Accountants”x), whose determination (y) or (z) shall constitute a loan by Employer to Executive under this Section 6.2, and Executive shall repay to Employer, within ten (10) business days after the time of such mutual agreement, such opinion is so furnished to Executive, or of such determination, as applicable, the amount of such loan plus interest thereon at the rate provided in Section 1274(b)(2)(B) of the Code for the period from the date of the initial payments to Executive to the date of such repayment by Executive. All fees and expenses of any Tax Counsel or accounting firm selected under this Section 6.2 shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required borne solely by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this SectionEmployer.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you Executive (ia) constitute “parachute payments” within the meaning of Section 280G of the Code and (iib) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your Executive’s discretion, your Executive’s severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-equity- based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you Executive otherwise agree agrees in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you Executive sufficient documentation for you Executive to rely on it for purpose of filing your Executive’s tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you the Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code (“Section 280G”) and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the CodeCode (“Section 4999”), then, at your the Executive’s discretion, your severance and other benefits under this Agreement shall be payable to the Executive either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you the Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code4999. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code409A, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code409A, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you the Executive otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you the Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code4999. The Company and you the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you the Executive sufficient documentation for you the Executive to rely on it for purpose of filing your the Executive’s tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. (a) In the event that the severance any payments and other benefits provided for in under this Agreement or otherwise payable to any other agreement or arrangement between the Company and you (collectively, the "Payments") (i) constitute “"parachute payments” " within the meaning of Section 280G of the Code and (ii) but for this Sectionsection, would be subject to the excise tax imposed by Section 4999 of the Code, then, at then your discretion, your severance and other benefits under this Agreement or otherwise shall be payable either (ia) in full, or (iib) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the an excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the your receipt by you on an after-tax basis, of the greatest amount of severance benefits under this AgreementAgreement or otherwise, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code; provided, however, that this sentence shall not apply if, immediately before the change in ownership or control on which such Payment is contingent or otherwise relates, no stock in the Company is readily tradeable on an established securities market or otherwise (as determined in accordance with Treasury Reg. Any Section 1.280G-1 Q&A 6). In applying this principle, the reduction shall be made in a manner consistent with the following manner: first a pro-rata reduction requirements of (i) cash payments subject to Code Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code409A, and second a if more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectrata. Unless you and the Company and you otherwise agree in writing, any determination required under this Section section shall be made in writing by the Company’s 's independent public accountants immediately preceding the change in ownership or control on which such Payments are contingent or otherwise relate (the “"Accountants”"), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Sectionsection, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The You and the Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnssection. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionsection as well as any costs incurred by you with the Accountants for tax planning under Sections 280G and 4999 of the Code.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code (“Section 280G” and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the CodeCode (“Section 4999”), then, at your discretion, then your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 4999. If a reduction in parachute payments is necessary so that no portion of such benefits are subject to the Code. Any excise tax, reduction shall be made will occur in the following mannerorder: first (i) cancellation of awards granted “contingent on a pro-change in ownership or control” (within the meaning of Section 280G); (ii) a pro rata reduction of (iA) cash payments that are subject to Section 409A of the Code as deferred compensation and (iiB) cash payments not subject to Section 409A; (iii) a pro rata reduction of (A) employee benefits that are subject to Section 409A of the Code, as deferred compensation and second (B) employee benefits not subject to Section 409A; and (iv) a pro rata cancellation of (iA) equity-based compensation accelerated vesting equity awards that are subject to Section 409A of the Code as deferred compensation and (iiB) equity-based compensation equity awards not subject to Section 409A of 409A. In the Code, with equity all being reduced in reverse order event that acceleration of vesting and of equity not subject awards is to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless be cancelled, such acceleration of vesting will be cancelled in the Company and you otherwise agree manner calculated to result in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish greatest economic benefit to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionyou.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your Employee’s discretion, your Employee’s severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Employee on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-pro rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with . Reduction in either cash payments or equity all being reduced in reverse order of vesting compensation benefits shall be made pro rata between and equity not among benefits which are subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectSection 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and you Employee otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Employee and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you the Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your Executive’s discretion, your Executive’s severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-pro rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with . Reduction in either cash payments or equity all being reduced in reverse order of vesting compensation benefits shall be made pro rata between and equity not among benefits which are subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectSection 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance acceleration benefit provided for in this Agreement and other benefits provided for in this Agreement or otherwise payable to you any other agreements between Employee and the Company (icollectively, the “Benefits”) constitute “parachute payments” " within the meaning of Section 280G of the Internal Revenue Code and of 1986, as amended (iithe “Code”) and, but for this Sectionparagraph, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement the Benefits shall be payable either provided either: (ix) in full, or (iiy) as to such lesser amount which would result in no portion of such severance and other benefits Benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Employee on an after-tax basis, of the greatest amount of severance benefits under this AgreementBenefits, notwithstanding that all or some portion of such severance benefits Benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you Employee otherwise agree in writing, any determination required under this Section paragraph shall be made in writing by the Company’s independent public accountants tax advisors designated by the Company (the “AccountantsAdvisors”), whose determination shall be conclusive and binding upon you Employee and the Company for all purposes. For purposes of making the calculations required by this Sectionparagraph, the Accountants Advisors may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Employee shall furnish to the Accountants Advisors such information and documents as the Accountants Advisors may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsparagraph. The Company shall bear all costs the Accountants Advisors may reasonably incur in connection with any calculations contemplated by this Sectionparagraph. In the event that a reduction in payments and/or benefits is required under this Section 4, such reduction shall occur in the following order (as applicable): (1) reduction of cash payments; (2) reduction of acceleration of vesting of equity awards; and (3) reduction of other benefits paid to Employee. If the acceleration of vesting of options and shares is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the highest price option grant and highest purchase price per share, as applicable, down to the lowest priced option grant and lowest purchase price per share.

Parachute Payments. In the event that If the severance and other benefits provided for in this the Agreement or otherwise payable to you Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this SectionSection VI.G.2, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your then Executive’s severance and other benefits under this the Agreement shall be payable either (iA) in full, or (iiB) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Executive on an after-tax basis, of the greatest amount of severance benefits under this the Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with Code Reduction in either cash payments or equity all being reduced in reverse order of vesting compensation benefits shall be made pro-rata between and equity not among benefits which are subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectSection 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company Parties and you Executive otherwise agree in writing, any determination required under this Section VI.G.2 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Executive and the Company Parties for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returnsSection VI.G.2. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this SectionSection VI.G.2.

Parachute Payments. Notwithstanding anything to the contrary contained herein (or any other agreement entered into by and between Xxxx and the Company or any incentive arrangement or plan offered by the Company), in the event that any amount or benefit paid or distributed to Xxxx pursuant to this Agreement, taken together with any amounts or benefits otherwise paid to Xxxx by the Company (collectively, the “Covered Payments”), would constitute an “excess parachute payment” as defined in Code Section 280G, and would thereby subject Xxxx to an excise tax under Code Section 4999 (an “Excise Tax”), the provisions of this Section 2.4 shall apply. If the aggregate present value (as determined for purposes of Code Section 280G) of the Covered Payments exceeds the amount which can be paid to Xxxx without Xxxx incurring an Excise Tax, then, solely to the extent that Xxxx would be better off on an after tax basis by receiving the maximum amount which may be paid hereunder without Xxxx becoming subject to the Excise Tax, the amounts payable to Xxxx under this Agreement (or any other agreement by and between Xxxx and the Company or pursuant to any incentive arrangement or plan offered by the Company) shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without Xxxx becoming subject to the Excise Tax (such reduced payments to be referred to as the “Payment Cap”). In the event that the severance Xxxx receives reduced payments and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G as a result of the Code application of this Section 2.4, Xxxx shall have the right to designate which of the payments and benefits otherwise set forth herein (iior any other agreement between the Company and Xxxx or any incentive arrangement or plan offered by the Company) but for this Sectionshall be received in connection with the application of the Payment Cap, would be subject to the excise tax imposed by following sentence. Reduction shall first be made from payments and benefits which are determined not to be nonqualified deferred compensation for purposes of Section 4999 of the Code409A, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction then shall be made in (to the following manner: first a pro-rata reduction extent necessary) out of (i) cash payments and benefits that are subject to Section 409A of and that are due at the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionlatest future date.

Parachute Payments. In Anything in the Agreement to the contrary notwithstanding, in the event it shall be determined that any payments or distribution in the severance and other benefits provided for in this Agreement or otherwise payable to you nature of compensation (i) constitute “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Code and Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement (iiincluding, without limitation, the accelerated vesting of incentive or equity awards held by the Executive) but for this Section, or otherwise would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either then the amount of “parachute payments” (i) as defined in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 280G of the Code, whichever ) payable or required to be provided to the Executive shall be automatically reduced to the minimum extent necessary to avoid imposition of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the such excise tax imposed (with the types of benefits or compensation that are reduced to be determined by the Company at its discretion, which shall be exercised first with respect to compensation and benefits that are not exempt from Code Section 4999409A); provided that this reduction shall not apply if the Executive would be better off, results in the receipt by you on an a net after-tax basis, of receiving the greatest amount of severance benefits under this Agreementparachute payments that would otherwise be reduced and paying such excise tax. Notwithstanding the foregoing, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, Executive shall use their reasonable efforts to have any determination required under payments or distributions that would be reduced or eliminated as a result of the application of this Section shall be made in writing 4.10 approved by the Company’s independent public accountants shareholders in the manner contemplated by Q&A 7 of Treasury Regulation Section 1.280G 1. All determinations required to be made under this Section 4.10 shall be made by the Company’s accounting firm (the “AccountantsAccounting Firm”); provided that the Executive may select which, whose determination if any, parachute payments shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may 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 Codereduced. The Company and you Accounting Firm shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver provide detailed supporting calculations both to the Company and you sufficient documentation for you to rely on it for purpose the Executive. All fees and expenses of filing your tax returnsthe Accounting Firm shall be borne solely by the Company. The Absent manifest error, any determination by the Accounting Firm shall be binding upon the Company shall bear all costs and the Accountants may reasonably incur in connection with any calculations contemplated by this SectionExecutive.

Parachute Payments. In As promptly as practicable after the event that execution and delivery of this Agreement, the severance Company shall submit to the holders of Company Common Stock as required by Section 280G(b)(5)(A)(ii) of the Code (in a manner reasonably satisfactory to Parent) for execution and other benefits provided for approval by such number of securityholders as is required by the terms of Section 280G(b)(5)(B) of the Code a written consent in this Agreement or otherwise payable favor of a single proposal to you (i) constitute “render the parachute payments” within the meaning payment provisions of Section 280G of the Code and the Treasury Laws thereunder (iicollectively, “Section 280G”) but for this Sectioninapplicable to any payments or benefits provided pursuant to Company Benefit Plans, other Material Contracts or otherwise in connection with the Transactions that might result, separately or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G or that would be subject to the an excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax Tax under Section 4999 of the CodeCode (determined without regard to the exceptions contained in Section 280G(b)(4)) or any corresponding provision of any state, whichever local or foreign Law (together, the “Section 280G Payments”). Any such approval shall be sought by the Company in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B) of the foregoing amounts, taking into account the applicable federal, state and local income taxes Code and the excise tax imposed by Treasury Laws thereunder, including Q-7 of Section 4999, results 1.280G-1 of such Treasury Laws. The Company agrees that: (i) in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion absence of such severance benefits may be taxable under approval, no Section 4999 of the Code. Any reduction 280G Payments shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject reasonably promptly after execution of this Agreement, and prior to Section 409A the submission of the Code, written consent described herein and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A any related disclosure of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code280G Payments, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company Parent waivers, in form and you sufficient documentation for you substance reasonably satisfactory to rely on it for purpose of filing your tax returnsParent, duly executed by each Person who might receive any Section 280G Payment. The form and substance of all Company shall bear all costs the Accountants may reasonably incur in connection with any calculations Securityholder approval documents contemplated by this SectionSection 5.6, including the waivers, disclosure statement and written consent, and any mathematical analysis of the Section 280G Payments, shall be subject to the prior reasonable review and approval of Parent, which shall not be unreasonably withheld.

Parachute Payments. In a. Notwithstanding anything to the event contrary contained in this Agreement, to the extent that any amount, stock option, restricted stock, RSUs, other equity awards or benefits paid or distributed to the severance and other benefits provided for in Executive pursuant to this Agreement or otherwise payable to you any other agreement or arrangement between the Company and the Executive (icollectively, the "280G Payments") (a) constitute “a "parachute payments” payment" within the meaning of Section 280G of the Code and (iib) but for this SectionSection 16, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement then the 280G Payments shall be payable either (i) in full, full or (ii) as to in such lesser amount which would result in no portion of such severance and other benefits 280G Payments being subject to the excise tax under Section 4999 of the Code, ; whichever of the foregoing amounts, taking into account the applicable federal, state and local income or excise taxes and (including the excise tax imposed by Section 4999, ) results in the Executive's receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Executive and the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s an independent public accountants accountant selected by the Company (the “"Accountants”"), whose determination shall be conclusive and binding upon you the Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section, as well as any reasonable legal or accountant expenses, or any additional taxes, that the Executive may incur as a result of any calculation errors made by the Accountant and/or the Company in connection with the Code Section 4999 excise tax analysis contemplated by this Section.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your Executive’s severance and other benefits under this Agreement shall be payable either (i) delivered in full, or (ii) delivered as to such lesser amount extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In Except as otherwise provided in an agreement between Executive and the event that Company (or any Affiliate), if any payment or benefit Executive would receive in connection with a Change in Control from the severance Financial Engines, Inc. Form Change of Executive Severance and other benefits provided for Change in this Control Agreement Company or otherwise payable to you (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code Code, and (ii) but for this Sectionsentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then, at your discretion, your severance and other benefits under this Agreement then such Payment shall be payable equal to the Reduced Amount. The “Reduced Amount” shall be either (ix) in full, or (ii) as to such lesser amount which the largest portion of the Payment that would result in no portion of such severance and other benefits the Payment being subject to the excise tax under Section 4999 Excise Tax, or (y) the largest portion, up to and including the total, of the CodePayment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the excise tax imposed by Section 4999Excise Tax (all computed at the highest applicable marginal rate), results in the receipt by you Executive’s receipt, on an after-tax basis, of the greatest greater amount of severance benefits under this Agreement, the Payment notwithstanding that all or some portion of such severance benefits the Payment may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject Excise Tax. The Company may consult with advisors to Section 409A of determine the CodeReduced Amount, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Executive and the Company for all purposes. For purposes of making the calculations required by this Sectionprovision, the Accountants Company and its advisors may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by hereby. In the event that the Reduced Amount is less than the Payment would be absent this Sectionprovision, the reduction shall be applied first to any Payments that are not subject to Section 409A of the Code, and then shall be applied to benefits (if any) that are subject to Section 409A of the Code.

Parachute Payments. In Notwithstanding anything contained herein to the event that contrary, any payment or benefit received or to be received by the severance and other benefits provided for in Executive, whether payable pursuant to the terms of this Agreement or otherwise payable any other plan, arrangements, award agreement or other agreement with Parent, the Company or any of their affiliates (collectively, the “Total Payments”), shall be reduced to you (i) constitute “parachute payments” within the meaning of Section 280G least extent necessary so that no portion of the Code and (ii) but for this Section, would Total Payments shall be subject to the excise tax imposed by Section 4999 of the Code, thenbut only if, at your discretionby reason of such reduction, your severance the Net After-Tax Benefit (as defined below) received by the Executive as a result of such reduction will exceed the Net After-Tax Benefit that would have been received by the Executive if no such reduction was made. If excise taxes may apply to the Total Payments, the foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company and other reasonably acceptable to the Executive. The Company will direct the Accounting Firm to submit any such determinations and detailed supporting calculations to both the Executive and the Company not less than fifteen (15) days before the date on which a payment becomes due. If the Accounting Firm determines that a reduction in payments is required pursuant to this Section 20, cash benefits under this Agreement shall first be reduced, followed by a reduction of non-cash payments, including equity award vesting acceleration, in each case, beginning with payments that would be made last in time and only to the least extent necessary so that no portion thereof shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under imposed by Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposesshall pay or provide such reduced amounts to the Executive in accordance with the terms of this Agreement or any other applicable plan, arrangement or agreement governing such payments. For purposes of making the calculations required by this SectionIf applicable, the Accountants may make reasonable assumptions Executive and approximations concerning applicable taxes the Company will each provide the Accounting Firm access to and may rely on reasonablecopies of any books, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information records and documents as in their respective possession, reasonably requested by the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to Accounting Firm, and otherwise cooperate with the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur Accounting Firm in connection with any the preparation and issuance of the determinations and calculations contemplated by this SectionSection 20. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 20 will be borne by the Company.

Parachute Payments. In the event that If the severance and other benefits provided for in this the Agreement or otherwise payable to you Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this SectionSection VI.G.2, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your then Executive’s severance and other benefits under this the Agreement shall be payable either (iA) in full, or (iiB) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Executive on an after-tax basis, of the greatest amount of severance benefits under this the Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with Code Reduction in either cash payments or equity all being reduced in reverse order of vesting compensation benefits shall be made pro-rata between and equity not among benefits which are subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subjectSection 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company Parties and you Executive otherwise agree in writing, any determination required under this Section VI.G.2 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Executive and the Company Parties for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance and other any benefits provided for in this Agreement or otherwise payable to you (ia) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (iib) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (ia) in full, or (iib) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment (if applicable) taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this AgreementAgreement and other Company compensation arrangements (collectively), notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (ia) cash payments subject to Section 409A of the Code as deferred compensation and (iib) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (ia) equity-based compensation subject to Section 409A of the Code as deferred compensation and (iib) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 1.280G-Q&A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose final determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In Anything in the Agreement to the contrary notwithstanding, in the event it shall be determined that any payments or distribution in the severance and other benefits provided for in this Agreement or otherwise payable to you nature of compensation (i) constitute “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Code and Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement (iiincluding, without limitation, the accelerated vesting of incentive or equity awards held by the Executive) but for this Section, or otherwise would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either then the amount of “parachute payments” (i) as defined in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 280G of the Code, whichever ) payable or required to be provided to the Executive shall be automatically reduced to the minimum extent necessary to avoid imposition of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the such excise tax imposed (with the types of benefits or compensation that are reduced to be determined by the Company at its discretion, which shall be exercised first with respect to compensation and benefits that are not exempt from Code Section 4999409A); provided that this reduction shall not apply if the Executive would be better off, results in the receipt by you on an a net after-tax basis, of receiving the greatest amount of severance benefits under this Agreementparachute payments that would otherwise be reduced and paying such excise tax. Notwithstanding the foregoing, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, Executive shall use their reasonable efforts to have any determination required under payments or distributions that would be reduced or eliminated as a result of the application of this Section shall be made in writing 4.7 approved by the Company’s independent public accountants shareholders in the manner contemplated by Q&A 7 of Treasury Regulation Section 1.280G 1. All determinations required to be made under this Section 4.7 shall be made by the Company’s accounting firm (the “AccountantsAccounting Firm”); provided that the Executive may select which, whose determination if any, parachute payments shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may 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 Codereduced. The Company and you Accounting Firm shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver provide detailed supporting calculations both to the Company and you sufficient documentation for you to rely on it for purpose the Executive. All fees and expenses of filing your tax returnsthe Accounting Firm shall be borne solely by the Company. The Absent manifest error, any determination by the Accounting Firm shall be binding upon the Company shall bear all costs and the Accountants may reasonably incur in connection with any calculations contemplated by this SectionExecutive.

Parachute Payments. Notwithstanding anything to the contrary contained herein (or any other agreement entered into by and between Xxxxx and the Company or any incentive arrangement or plan offered by the Company), in the event that any amount or benefit paid or distributed to Xxxxx pursuant to this Agreement, taken together with any amounts or benefits otherwise paid to Xxxxx by the Company (collectively, the “Covered Payments”), would constitute an “excess parachute payment” as defined in Code Section 280G, and would thereby subject Xxxxx to an excise tax under Code Section 4999 (an “Excise Tax”), the provisions of this Section 2.4 shall apply. If the aggregate present value (as determined for purposes of Code Section 280G) of the Covered Payments exceeds the amount which can be paid to Xxxxx without Xxxxx incurring an Excise Tax, then, solely to the extent that Xxxxx would be better off on an after tax basis by receiving the maximum amount which may be paid hereunder without Xxxxx becoming subject to the Excise Tax, the amounts payable to Xxxxx under this Agreement (or any other agreement by and between Xxxxx and the Company or pursuant to any incentive arrangement or plan offered by the Company) shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without Xxxxx becoming subject to the Excise Tax (such reduced payments to be referred to as the “Payment Cap”). In the event that the severance Xxxxx receives reduced payments and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G as a result of the Code application of this Section 2.4, Xxxxx shall have the right to designate which of the payments and benefits otherwise set forth herein (iior any other agreement between the Company and Xxxxx or any incentive arrangement or plan offered by the Company) but for this Sectionshall be received in connection with the application of the Payment Cap, would be subject to the excise tax imposed by following sentence. Reduction shall first be made from payments and benefits which are determined not to be nonqualified deferred compensation for purposes of Section 4999 of the Code409A, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction then shall be made in (to the following manner: first a pro-rata reduction extent necessary) out of (i) cash payments and benefits that are subject to Section 409A of and that are due at the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionlatest future date.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you the Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your Executive’s severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 (as applicable), results in the receipt by you Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata prorata reduction of (i) any cash payments subject to Section 409A of the Code as deferred compensation and (ii) any cash payments not subject to Section 409A of the Code, and second a pro rata prorata cancellation of (i) any equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) any equity-based compensation not subject to Section 409A of the Code, with . Reduction in either cash payments or equity all being reduced in reverse order of vesting compensation benefits shall be made prorata between and equity not among benefits which are subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity Section 409A of the Code and benefits which are exempt from Section 409A of the Code in each case beginning with the benefits that is so subjectwould othewise be made last in time. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Executive and the Company for all purposes. For purposes of making the calculations required by this SectionSection 6.4, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In Notwithstanding anything in this Agreement to the event that contrary, the severance and other benefits provided for in amount of any payment or benefit to be received by Executive pursuant to this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, which would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement Code shall be payable either reduced (ibut not below zero) in fullby the amount, if any, necessary to prevent any part of any such payment or benefit received or to be received by Executive (ii) such foregoing payments or benefits referred to collectively as to such lesser amount which would result in no portion of such severance and other benefits the “Total Payments”), from being subject to such excise tax, but only if and to the excise tax under extent such reduction will also result in, after taking into account all applicable state and Federal taxes (computed at the highest applicable marginal rate), including any taxes payable pursuant to Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an a greater after-tax basis, benefit to Executive than the after-tax benefit to Executive of the greatest amount Total Payments computed without regard to any such reduction. For purposes of severance benefits under this Agreementthe foregoing, notwithstanding that all or some (a) no portion of such severance benefits may the Total Payments shall be taxable under taken into account which in the opinion of tax counsel selected by Executive (“Tax Counsel”) does not constitute a “parachute payment” within the meaning of Section 4999 280G(b)(2) of the Code. Any ; (b) any reduction in payments or benefits pursuant to this Agreement shall be made computed by taking into account, in the following manner: first a pro-rata reduction of (iaccordance with Section 280G(b)(4) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A that portion of the Code as deferred compensation and (iiTotal Payments which is reasonable compensation, within the meaning of Section 280G(b)(4) equity-based compensation not subject to Section 409A of the Code, in the opinion of Tax Counsel; (c) the value of any non-cash benefits or of any deferred or accelerated payments or benefits included in the Total Payments shall be determined by a public accounting firm, selected by Executive, in accordance with equity the principles of Section 280G(d)(3) and (4) of the Code and the Treasury Regulations promulgated thereunder; and (d) in the event of any uncertainty as to whether a reduction in Total Payments to Executive is required pursuant hereto, Employer shall initially make all being reduced in reverse order payments otherwise required to be paid to Executive hereunder, and any amounts so paid which are ultimately determined not to have been payable hereunder (other than as a loan to Executive), either (x) upon mutual agreement of vesting Executive and equity Employer, or (y) upon Tax Counsel furnishing Executive with its written opinion setting forth the amount of such payments not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is have been so subject. Unless the Company and you otherwise agree in writing, any determination required payable (other than as a loan to Executive under this Section 6.2), or (z) in the event a portion of the Total Payments shall be made determined by a court or an Internal Revenue Service proceeding to have otherwise been an “excess parachute payment,” the amount so determined in writing by the Company’s independent public accountants clause (the “Accountants”x), whose determination (y) or (z) shall constitute a loan by Employer to Executive under this Section 6.2, and Executive shall repay to Employer, within ten (10) business days after the time of such mutual agreement, such opinion is so furnished to Executive, or of such determination, as applicable, the amount of such loan plus interest thereon at the rate provided in Section 1274(b)(2)(B) of the Code for the period from the date of the initial payments to Executive to the date of such repayment by Executive. All fees and expenses of any Tax Counsel or accounting firm selected under this Section 6.2 shall be conclusive borne solely by Employer. Section 5: Indemnification In addition to any rights to indemnification to which Executive is entitled under Employer’s Articles of Incorporation and binding upon you Bylaws, Employer shall indemnify Executive at all times during and after the Company for all purposes. For purposes term of making this Agreement to the calculations required by this Sectionmaximum extent permitted under the Delaware General Corporation Law and any successor provision thereof and any other applicable corporate law, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonableshall pay Executive’s expenses in defending any civil or criminal action, good faith interpretations concerning the application of Sections 280G and 4999 suit or proceeding in advance of the Code. The Company final disposition of such action, suit or proceeding and you shall furnish any appeal thereof, to the Accountants maximum extent permitted under such information applicable laws. Employer shall use reasonable efforts to maintain at all times Directors and documents as Officers Coverage comparable to its existing Directors and Officers Coverage, if the Accountants may reasonably request same can be obtained at a reasonable cost in order to make a determination under this Section. The Accountants shall deliver comparison to the Company and you sufficient documentation for you cost of the then existing coverage, to rely on it for purpose cover all or a portion of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionforegoing liability.

Parachute Payments. In the event that the severance and other benefits provided for Notwithstanding anything contained in this Agreement to the contrary, to the extent that payments and benefits provided under this Agreement to Employee (such payments or otherwise payable benefits are collectively referred to you as the “Payments”) would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to Employee shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by such Employee shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 9(b), “net after-tax benefit” shall mean (i) the Payments which such Employee receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code and Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid such Employee (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Employee and reasonably acceptable to the Company (which may be, but for will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the affected Employee and the Company within fifteen (15) calendar days after Employee’s date of termination. If the Accounting Firm determines that such reduction is required by this SectionSection 9(b), would Employee, in Employee’s sole and absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish pay such reduced amount to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectionhim.

Parachute Payments. In Notwithstanding anything contained in this Agreement to the event contrary, to the extent that the severance payments and other benefits provided for in under this Agreement or otherwise payable (including the acceleration of vesting of equity awards) to you Employee (such payments or benefits are collectively referred to as the "Payments") would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Code, the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to Employee shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Employee shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 9(d), "net after-tax benefit" shall mean (i) the Payments which Employee receives or is then entitled to receive from the Company or Parent that would constitute “"parachute payments” " within the meaning of Section 280G of the Code and Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Employee (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the "Accounting Firm") selected by Employee and reasonably acceptable to the Company (which may be, but for will not be required to be, the Company's or Parent’s independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the affected Employee and the Company within fifteen (15) calendar days after Employee's date of Separation from Service. If the Accounting Firm determines that such reduction is required by this SectionSection 9(d) and no Payment constitutes non-qualified deferred compensation that is subject to Section 409A of the Code, would Employee, in Employee's sole and absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed Company shall pay such reduced amount to him. If the Accounting Firm determines that a reduction is required by this Section 49999(d), results in and any Payment constitutes a "deferral of compensation" within the receipt by you on an after-tax basis, meaning of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata then the Payments shall be reduced in the following order; (a) reduction in the cash severance payments described herein (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments); (b) reduction in any other cash payments payable to Employee (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments); (c) cancellation of (i) equity-based compensation subject to Section 409A acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the Code as deferred compensation underlying equity; and (iid) equity-based compensation cancellation of acceleration of vesting of equity awards not subject covered under (c) above; provided, however that in the event that acceleration of vesting of equity awards is to Section 409A be cancelled, such acceleration of vesting shall be cancelled in the Code, with equity all being reduced in reverse order of vesting and the date of grant of such equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before awards, that is, later equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section awards shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Sectioncanceled before earlier equity awards.

Parachute Payments. In the event that the severance and other benefits provided for Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or otherwise payable to you distribution in the nature of compensation (i) constitute “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Code and Tax Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement (iiincluding, without limitation, the accelerated vesting of incentive or equity awards held by the Executive) but for this Section, or otherwise would be subject to the excise tax imposed by Section 4999 of the Codecode, then, at your discretion, your severance and other benefits under this Agreement shall be payable either then the amount of “parachute payments” (i) as defined in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 280G of the Code) payable or required to be provided to the Executive shall be automatically reduced to the minimum extent necessary to avoid imposition of such excise tax; provided that this reduction shall not apply if the Executive would be better off, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an a net after-tax basis, receiving the parachute payments that would otherwise be reduce and paying such excise tax. Notwithstanding the foregoing, the Company shall use its reasonable efforts to have any payments or distributions that would be reduced or eliminated as a result of the greatest amount application of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing 4.9 approved by the Company’s independent public accountants shareholders in the manner contemplated by Q&A 7 of Treasury Regulation Section 1.280G-1. All determinations required to be made under this Section 4.4.10 shall be made by the Company’s accounting firm (the “AccountantsAccounting Firm”); provided that the Executive may select which, whose determination if any, parachute payments shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may 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 Codereduced. The Company and you Accounting Firm shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver provide detailed supporting calculations both to the Company and you sufficient documentation for you to rely on it for purpose the Executive. All fees and expenses of filing your tax returnsthe Accounting Firm shall be borne solely by the Company. The Absent manifest error, any determination by the Accounting Firm shall be binding upon the Company shall bear all costs and the Accountants may reasonably incur in connection with any calculations contemplated by this SectionExecutive.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your severance and other benefits under this Agreement shall be payable either (i) in full, full or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under U.S. Treasury regulation 1.280G- Q & A 24(cRegulation 1.280G Q&A-24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your Executive’s severance and other benefits under this Agreement shall be payable either (i) delivered in full, or (ii) delivered as to such lesser amount extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you Executive on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you Executive and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section. 10 Insert the applicable period: CEO: Twenty Four (24) months, SVPs: Eighteen (18) months and VPs: Twelve (12) months. 11 Insert the applicable percentage: CEO: two hundred percent (200%), SVPs: one hundred fifty percent (150%) and VPs: one hundred percent (100%). 12 Insert the applicable period: CEO: Twenty Four (24) months, SVPs: Eighteen (18) months and VPs: Twelve (12) months.