Common use of Certain Excise Taxes Clause in Contracts

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from Company, any member of the Company Group or any of its their respective affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from Company, any member of the Company Group or any of its their respective affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from Company, any member of the Company Group or any of its their respective affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 22 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company Employer or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of Employer and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code Code, or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company Employer in good faith. If a reduced payment or benefit is made or provided provided, and through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company Employer (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company Employer upon notification that an overpayment has been made. Nothing in this Section 24 Article 9 shall require the Company Employer to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require any member of the Company Group to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its affiliates Affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 4.5 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary (or whether Executive would be subject to such excise tax) shall be made at the expense of the Company by a firm of independent accountants, a law firm, or other valuation specialist selected by the Company Board in good faithfaith prior to the consummation of the applicable change in control transaction, and the applicable independent accountants, law firm, or other valuation specialist shall consider the value of Executive’s restrictive covenants (including the non-competition restrictions set forth herein) as part of its analysis. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 19 shall require the Company to be responsible for, or have any liability or obligation provide a gross-up payment to Executive with respect to, Employeeto Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 25 shall require any member of the Company Group to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of and its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement (beginning with any benefit to be paid in cash hereunder) shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company Compensation Committee in good faithfaith and in consultation with tax and legal advisors of the Company. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliatesaffiliated companies, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of and its affiliates shall affiliated companies will be one dollar ($1.00) less than three times Employeethe Executive’s “base amount” (as amount”(as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliated companies) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 Paragraph 7 shall require the Company (or any of its affiliated companies) to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from Company, any member of the Company Group or any of its their respective affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from Company, any member of the Company Group or any of its their respective affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from Company, any member of the Company Group or any of its their respective affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 23 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code Code, or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes, including any federal, state, municipal, and local income or employment taxes, and taking into account the phase out of itemized deductions and personal exemptions). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. , in all instances in accordance with Section 409A. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company or the Employer in good faith; provided, however, that (a) no portion of Executive’s payments or benefits the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of section 280G(b) of the Code will be taken into account; (b) no portion of Executive’s payments or benefits will be taken into account which, in the opinion of tax counsel (“Tax Counsel”) for the Company does not constitute a parachute payment (including by reason of section 280G(b)(4)(A) of the Code); (c) in calculating the applicable excise tax under section 4999 of the Code, no portion of Executive’s payments or benefits will be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the base amount that is allocable to such reasonable compensation; and (d) the value of any non-cash benefit or any deferred payment or benefit will be determined by Tax Counsel or the Company’s independent auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. At the time that payments are made under this Agreement, the Company will provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations, including any opinions or other advice the Company received from Tax Counsel, the Company’s independent auditor, or other advisors or consultants (and any such opinions or advice which are in writing will be attached to the statement). If a reduced payment or benefit is made or provided provided, and through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company or the applicable affiliate upon notification that an overpayment has been made. Nothing The fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 24 Article X will not limit or otherwise affect any other rights of Executive under this Agreement or otherwise. All determinations required by this Article X will be made at the expense of the Company. However, nothing in this Article X shall require the Company or any affiliate to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 7.5 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the separation payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee such Executive has the right to receive from the Company Parent or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of Parent and its affiliates shall Affiliates will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company Parent in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefitpayment, when aggregated with other payments and benefits from the Company Parent (or any of its affiliates Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company Parent (or its Affiliates) upon notification that an overpayment has been made. Nothing in this Section 24 1(e) shall require the Company Parent or Employer to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Participant is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee Participant has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Participant from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times EmployeeParticipant’s “base amount” (as amount”(as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Participant shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Participant (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefitpayment, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times EmployeeParticipant’s base amount, then Employee Participant shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 Agreement shall require the Company (or any of its Affiliates) to be responsible for, or have any liability or obligation with respect to, EmployeeParticipant’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 7.2 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 8.1 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code. Notwithstanding the foregoing, if shareholder approval (obtained in a manner that satisfies the requirements of section 280G(b)(5) of the Code) of a payment or benefit to be provided to Executive by the Company or any other person (whether under this Agreement or otherwise) would prevent Executive from receiving a “parachute payment” (as defined in section 280G(b)(2) of the Code), then, upon the request of Executive and his agreement (to the extent necessary) to subject his entitlement to the receipt of such payment or benefit to shareholder approval, the Company shall seek such approval in a manner that satisfies the requirements of section 280G of the Code and the regulations thereunder.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times Employeethe Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 3.4.5. shall require the Company to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliatesother person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of its affiliates shall and/or such person(s) will be one dollar ($1.00) less than three (3) times Employeethe Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faithfaith in consultation with its independent accountants. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates other person used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three (3) times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 5 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 10.1 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code. Notwithstanding the foregoing, if shareholder approval (obtained in a manner that satisfies the requirements of section 280G(b)(5) of the Code) of a payment or benefit to be provided to Executive by the Company or any other person (whether under this Agreement or otherwise) would prevent Executive from receiving a “parachute payment” (as defined in section 280G(b)(2) of the Code), then, upon the request of Executive and his agreement (to the extent necessary) to subject his entitlement to the receipt of such payment or benefit to shareholder approval, the Company shall seek such approval in a manner that satisfies the requirements of section 280G of the Code and the regulations thereunder.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 12 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 23 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code Code, or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes, including any federal, state, municipal, and local income or employment taxes, and taking into account the phase out of itemized deductions and personal exemptions). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. , in all instances in accordance with Section 409A. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith; provided, however, that (a) no portion of Executive’s payments or benefits the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of section 280G(b) of the Code will be taken into account; (b) no portion of Executive’s payments or benefits will be taken into account which, in the opinion of tax counsel (“Tax Counsel”) for the Company does not constitute a parachute payment (including by reason of section 280G(b)(4)(A) of the Code); (c) in calculating the applicable excise tax under section 4999 of the Code, no portion of Executive’s payments or benefits will be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the base amount that is allocable to such reasonable compensation; and (d) the value of any non-cash benefit or any deferred payment or benefit will be determined by Tax Counsel or the Company’s independent auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. At the time that payments are made under this Agreement, the Company will provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations, including any opinions or other advice the Company received from Tax Counsel, the Company’s independent auditor, or other advisors or consultants (and any such opinions or advice which are in writing will be attached to the statement). If a reduced payment or benefit is made or provided provided, and through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company or the applicable affiliate upon notification that an overpayment has been made. Nothing The fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 24 Article X will not limit or otherwise affect any other rights of Executive under this Agreement or otherwise. All determinations required by this Article X will be made at the expense of the Company. However, nothing in this Article X shall require the Company or any affiliate to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a ““ parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 27 shall require any member of the Company Group to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 22 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times Employeethe Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 Paragraph 7 shall require the Company (or any of its Affiliates) to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 25 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three (3) times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Code Section 280G(c) of the Code)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2) of the Code)), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three (3) times EmployeeExecutive’s “base amount” (as defined in Code Section 280G(b)(3) of the Code)) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Code Section 4999 of the Code or (b) paid in full, whichever produces the better net after-after tax position to Employee the Executive (taking into account any applicable excise tax under Code Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits mentioned hereunder, if as applicable, shall be made by reducing, reducing such payments and benefits first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessaryof any severance payments due pursuant to Article 3 paid in cash, through to such payment or benefit that would with later payments being reduced first. Thereafter, the reduction shall be made first in timeby: (A) andthe waiver of accelerated vesting of equity awards, thenwith awards having a later vesting date being reduced first; (B) next, cutting back on the benefit continuation pursuant to Section 3; and (C) lastly, reducing any benefit to be provided in-kind hereunder in a similar orderall other payments or benefits, with later payments being reduced first. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company Holdings in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three (3) times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. In the event any reduction under this Agreement is disputed by the Executive, then determinations required to be made under this Section 3.04, including the assumptions to be utilized in arriving at such determination, shall be made by an outside nationally recognized accounting or consulting firm selected by Holdings or the Board, in its reasonable discretion (the “Accounting Firm”), which shall provide detailed supporting calculations both to Holdings and the Executive within 15 business days of the receipt of notice from the Executive that there has been a payment hereunder, or such earlier time as is requested by Holdings. In no event shall the Accounting Firm be an accounting firm that was, or is, serving as accountant or auditor for the individual, entity or group affecting the change of ownership or effective control of Holdings. Nothing in this Section 24 3.04 shall require the Company or Holdings (or any of their respective Affiliates) to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Code Section 4999 of the Code4999.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of and its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement (beginning with any benefit to be paid in cash hereunder) shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company Compensation Committee in good faithfaith and in consultation with tax and legal advisors of the Company. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 29 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Participant is a “"disqualified individual” " (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee Participant has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Participant from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times Employee’s “Participant's "base amount” (as amount"(as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Participant shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Participant (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefitpayment, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times Employee’s Participant's base amount, then Employee Participant shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 Agreement shall require the Company (or any of its Affiliates) to be responsible for, or have any liability or obligation with respect to, Employee’s Participant's excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 6(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary (or whether Executive would be subject to such excise tax) shall be made at the expense of the Company by a firm of independent accountants, a law firm, or other valuation specialist selected by the Company Board in good faithfaith prior to the consummation of the applicable change in control transaction, and the applicable independent accountants, law firm, or other valuation specialist shall consider the value, if any, of Executive’s restrictive covenants (including the non-competition restrictions set forth herein) as part of its analysis as may be appropriate under Section 280G of the Code. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation provide a gross-up payment to Executive with respect to, Employeeto Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times Employeethe Executive’s “base amount” (as amount”(as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 7 shall require the Company (or any of its Affiliates) to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 22 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times Employeethe Executive’s “base amount” (as amount”(as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 Paragraph 7 shall require the Company (or any of its Affiliates) to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Code Section 280G(c) of the Code)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2) of the Code)), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three (3) times EmployeeExecutive’s “base amount” (as amount”(as defined in Code Section 280G(b)(3) of the Code)) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Code Section 4999 of the Code or (b) paid in full, whichever produces the better net after-after tax position to Employee the Executive (taking into account any applicable excise tax under Code Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits mentioned hereunder, if as applicable, shall be made by reducing, reducing such payments and benefits first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessaryof any severance payments due pursuant to Article 3 paid in cash, through to such payment or benefit that would with later payments being reduced first. Thereafter, the reduction shall be made first in timeby: (A) andthe waiver of accelerated vesting of equity awards, thenwith awards having a later vesting date being reduced first; (B) next, cutting back on the benefit continuation pursuant to Section 3; and (C) lastly, reducing any benefit to be provided in-kind hereunder in a similar orderall other payments or benefits, with later payments being reduced first. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company Ecovyst in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three (3) times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. In the event any reduction under this Agreement is disputed by the Executive, then determinations required to be made under this Section 3.04, including the assumptions to be utilized in arriving at such determination, shall be made by an outside nationally recognized accounting or consulting firm selected by Ecovyst or the Board, in its reasonable discretion (the “Accounting Firm”), which shall provide detailed supporting calculations both to Ecovyst and the Executive within 15 business days of the receipt of notice from the Executive that there has been a payment hereunder, or such earlier time as is requested by Ecovyst. In no event shall the Accounting Firm be an accounting firm that was, or is, serving as accountant or auditor for the individual, entity or group affecting the change of ownership or effective control of Ecovyst. Nothing in this Section 24 3.04 shall require the Company or Ecovyst (or any of their respective Affiliates) to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Code Section 4999 of the Code4999.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes)Code. The reduction of payments and benefits hereunder, if applicable, hereunder shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require any member of the Company Group to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary (or whether Employee would be subject to such excise tax) shall be made at the expense of the Company by a firm of independent accountants, a law firm or other valuation specialist selected by the Company Board in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation provide a gross-up payment to Employee with respect to, to Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its their respective affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of its their respective affiliates shall be one dollar ($1.00) less than three times Employeethe Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its their respective affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company Company, as applicable, upon notification that an overpayment has been made. Nothing in this Section 24 5 shall require the Company or any of their respective affiliates to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this AgreementSection 7.1, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement Section 7.1 (beginning with any benefit to be paid in cash hereunder) shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced cash payment or benefit is made or provided and through error or otherwise that payment or benefitpayment, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 10.1 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this AgreementAgreement or any other plan, arrangement or agreements to the contrary, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits any payment or benefit provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company Agreement or any of its affiliates, otherwise would constitute a “parachute payment” within the meaning of Section 280Gof the Code (as defined in a “280G Payment”) and would, but for this Section 280G(b)(2) 5, be subject to an excise tax under Section 4999 of the CodeCode (the “Excise Tax”), then the payments and benefits provided for in this Agreement such 280G Payment shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates 280G Payment shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits 280G Payment received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code Excise Tax or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code Excise Tax and any other applicable taxes). The reduction of payments and benefits hereundersuch 280G Payment, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such the payment or benefit that would be made last in time and continuing, to the extent necessary, through to such the payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder a 280G Payment is necessary shall be made by the Company or Parent in good faith. If a reduced payment or benefit 280G Payment is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company applicable payor upon notification that an overpayment has been made. Nothing in this Section 24 5 shall require the Company Company, Parent or any of their respective affiliates to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Codeany Excise Tax.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times Employeethe Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits VANTAGE DRILLING COMPANY EMPLOYMENT AGREEMENT received by Employee the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 3.4.5. shall require the Company to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section section 4999 of the Code Code, or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes, including any federal, state, municipal, and local income or employment taxes, and taking into account the phase out of itemized deductions and personal exemptions). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. , in all instances in accordance with Section 409A. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company or the Employer in good faith; provided, however, that (a) no portion of Employee’s payments or benefits the receipt or enjoyment of which Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of section 280G(b) of the Code will be taken into account; (b) no portion of Employee’s payments or benefits will be taken into account which, in the opinion of tax counsel (“Tax Counsel”) for the Company does not constitute a parachute payment (including by reason of section 280G(b)(4)(A) of the Code); (c) in calculating the applicable excise tax under section 4999 of the Code, no portion of Employee’s payments or benefits will be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the base amount that is allocable to such reasonable compensation; and (d) the value of any non-cash benefit or any deferred payment or benefit will be determined by Tax Counsel or the Company’s independent auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. At the time that payments are made under this Agreement, the Company will provide Employee with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations, including any opinions or other advice the Company received from Tax Counsel, the Company’s independent auditor, or other advisors or consultants (and any such opinions or advice which are in writing will be attached to the statement). If a reduced payment or benefit is made or provided provided, and through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company or the applicable affiliate upon notification that an overpayment has been made. Nothing The fact that Employee’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 24 Article X will not limit or otherwise affect any other rights of Employee under this Agreement or otherwise. All determinations required by this Article X will be made at the expense of the Company. However, nothing in this Article X shall require the Company or any affiliate to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its respective affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its their respective affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its respective affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 5 shall require the Company or any of its affiliates to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code or for any penalties imposed in connection with any failure to comply with Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its their respective affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of its their respective affiliates shall be one dollar ($1.00dollar($1.00) less than three times Employeethe Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its their respective affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company Company, as applicable, upon notification that an overpayment has been made. Nothing in this Section 24 5 shall require the Company or any of their respective affiliates to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 28 shall require any member of the Company Group to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “"disqualified individual” " (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times Employee’s “Executive's "base amount” " (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “"parachute payment” " exists, exceeds one dollar ($1.00) less than three times Employee’s Executive's base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 15 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s Executive's excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 20 shall require the Company Group to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Xx. Xxxxxx is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Xx. Xxxxxx has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Xx. Xxxxxx from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times Employee’s Xx. Xxxxxx’x “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Xx. Xxxxxx shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Xx. Xxxxxx (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s Xx. Xxxxxx’x base amount, then Employee he shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 5.1.4 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s Xx. Xxxxxx’x excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary (or whether Executive would be subject to such excise tax) shall be made at the expense of the Company by a firm of independent accountants, a law firm, or other valuation specialist selected by the Company Board in good faithfaith prior to the consummation of the applicable change in control transaction, and the applicable independent accountants, law firm, or other valuation specialist shall consider the value, if any, of Executive’s restrictive covenants (including the non-competition restrictions set forth herein) as part of its analysis as may be appropriate under the Section 280G of the Code. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation provide a gross-up payment to Executive with respect to, Employeeto Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of and its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and 4877-6103-2560 benefits provided for in this Agreement (beginning with any benefit to be paid in cash hereunder) shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company Compensation Committee in good faithfaith and in consultation with tax and legal advisors of the Company. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company Company, Parent or any of its their respective affiliates, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company Company, Parent or any of its their respective affiliates shall be one dollar ($1.00) less than three times Employee’s “Executive's "base amount” " (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever of clause (a) or (b) produces the better more favorable net after-tax position dollar amount to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any all other applicable income and employment taxes) (“Best After-Tax Amount”). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company or Parent in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company Company, Parent or any of its their respective affiliates used in determining if a “"parachute payment” " exists, exceeds one dollar ($1.00) less than three times Employee’s Executive's base amount, then Employee Executive shall immediately repay such excess to the Company or Parent, as applicable, upon notification that an overpayment has been made. Nothing in this Section 24 5 shall require the Company Company, Parent or any of their respective affiliates to be responsible for, or have any liability or obligation with respect to, Employee’s Executive's excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a ““ parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, and then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and and, through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 26 shall require any member of the Company Group to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Code Section 280G(c) of the Code)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2) of the Code)), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Code Section 280G(b)(3) of the Code)) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Code Section 4999 of the Code 4999, or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Code Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 7.4 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Code Section 4999 of the Code4999.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Xx. Xxxxxx, Jr. is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Xx. Xxxxxx, Jr. has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Xx. Xxxxxx, Jr. from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeXx. Xxxxxx, Jr.’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Xx. Xxxxxx, Jr. shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Xx. Xxxxxx, Jr. (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeXx. Xxxxxx, Jr.’s base amount, then Employee he shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 5.1.4 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeXx. Xxxxxx, Jr.’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “‘disqualified individual” ’ (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company ZS Pharma or any of its affiliatesAffiliates, would constitute a “‘parachute payment” ’ (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of ZS Pharma and its affiliates shall Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company ZS Pharma in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company ZS Pharma (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company ZS Pharma upon notification that an overpayment has been made. Nothing in this Section 24 2(d) shall require the Company ZS Pharma (or any of its Affiliates) to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreementthe Plan, if Employee an Eligible Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreementthe Plan, together with any other payments and benefits which Employee such Eligible Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement the Plan shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee such Eligible Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times Employeesuch Eligible Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee such Eligible Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee such Eligible Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefitpayment, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employeesuch Eligible Executive’s base amount, then Employee such Eligible Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 6 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s such Eligible Executives’ excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess ​ ​ to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code Code, or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes, including any federal, state, municipal, and local income or employment taxes, and taking into account the phase out of itemized deductions and personal exemptions). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder for which the 280G value is not reduced pursuant to Q/A 24(c) of the 280G Treasury Regulations in a similar order (but excluding from such reduction the continuation coverage provided by Section 5.3(d)), and then, reducing any other benefit to be provided in-kind hereunder in a similar order. , in all instances in accordance with Section 409A. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith; provided, however, that (a) no portion of Executive’s payments or benefits the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of section 280G(b) of the Code will be taken into account; (b) no portion of Executive’s payments or benefits will be taken into account which, in the opinion of tax counsel (“Tax Counsel”) for the Company does not constitute a parachute payment (including by reason of section 280G(b)(4)(A) of the Code); (c) in calculating the applicable excise tax under section 4999 of the Code, no portion of Executive’s payments or benefits will be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the base amount that is allocable to such reasonable compensation; and (d) the value of any non-cash benefit or any deferred payment or benefit will be determined by Tax Counsel or the Company’s independent auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. At the time that payments are made under this Agreement, the Company will provide Executive with a written statement setting forth the manner in EXHIBIT 10.2 which such payments were calculated and the basis for such calculations, including any opinions or other advice the Company received from Tax Counsel, the Company’s independent auditor, or other advisors or consultants (and any such opinions or advice which are in writing will be attached to the statement). If a reduced payment or benefit is made or provided provided, and through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company or the applicable affiliate upon notification that an overpayment has been made. Nothing The fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 24 Article X will not limit or otherwise affect any other rights of Executive under this Agreement or otherwise. All determinations required by this Article X will be made at the expense of the Company. However, nothing in this Article X shall require the Company or any affiliate to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 10.1 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code Code, or (b) paid in full, EXHIBIT 10.4 whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes, including any federal, state, municipal, and local income or employment taxes, and taking into account the phase out of itemized deductions and personal exemptions). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder for which the 280G value is not reduced pursuant to Q/A 24(c) of the 280G Treasury Regulations in a similar order (but excluding from such reduction the continuation coverage provided by Section 5.3(d)), and then, reducing any other benefit to be provided in-kind hereunder in a similar order. , in all instances in accordance with Section 409A. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith; provided, however, that (a) no portion of Executive’s payments or benefits the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of section 280G(b) of the Code will be taken into account; (b) no portion of Executive’s payments or benefits will be taken into account which, in the opinion of tax counsel (“Tax Counsel”) for the Company does not constitute a parachute payment (including by reason of section 280G(b)(4)(A) of the Code); (c) in calculating the applicable excise tax under section 4999 of the Code, no portion of Executive’s payments or benefits will be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the base amount that is allocable to such reasonable compensation; and (d) the value of any non-cash benefit or any deferred payment or benefit will be determined by Tax Counsel or the Company’s independent auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. At the time that payments are made under this Agreement, the Company will provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations, including any opinions or other advice the Company received from Tax Counsel, the Company’s independent auditor, or other advisors or consultants (and any such opinions or advice which are in writing will be attached to the statement). If a reduced payment or benefit is made or provided provided, and through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company or the applicable affiliate upon notification that an overpayment has been made. Nothing The fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 24 Article X will not limit or otherwise affect any other rights of Executive under this Agreement or otherwise. All determinations required by this Article X will be made at the expense of the Company. However, nothing in this Article X shall require the Company or any affiliate to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 IV.I shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company Company, Parent or any of its their respective affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company Company, Parent or any of its their respective affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company or Parent in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company Company, Parent or any of its their respective affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company or Parent, as applicable, upon notification that an overpayment has been made. Nothing in this Section 24 5 shall require the Company Company, Parent or any of their respective affiliates to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) ​ ​ less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require any member of the Company Group to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in ​ ​ Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as All determinations required to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary be made under this Section 20 shall be made by the accounting firm that was the Parent's independent auditor prior to the Change of Control or any other third party acceptable to Employee and the Company in good faith(the "Accounting Firm"). The Accounting Firm shall provide detailed supporting calculations both to the Company and Employee. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Absent manifest error, any determination by the Accounting Firm shall be binding upon the Company and Employee. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 20 shall require the Company Group to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company Company, Parent or any of its their respective affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company Company, Parent or any of its their respective affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever of clause (a) or (b) produces the better more favorable net after-tax position dollar amount to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any all other applicable income and employment taxes) (“Best After-Tax Amount”). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company or Parent in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company Company, Parent or any of its their respective affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company or Parent, as applicable, upon notification that an overpayment has been made. Nothing in this Section 24 5 shall require the Company Company, Parent or any of their respective affiliates to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s Executive “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 17 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if If Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to may receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall will be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account considering any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunderbenefits, if applicable, shall will be made by reducing, first, payments or benefits to be paid in cash hereunder under this Agreement in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder under this Agreement in a similar order. The Company in good faith will make the determination as to whether if any such reduction in the amount of the payments and benefits provided hereunder under this Agreement is necessary shall be made by the Company in good faithnecessary. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon on notification that an overpayment has been made. Nothing in this Section 24 shall 23 will require the Company to be responsible for, or have any liability or obligation with respect toregarding, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Participant is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee Participant has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Participant from the Company or any of and its affiliates shall Affiliates will Active 31813439.7 5 103543934.10 be one dollar ($1.00) less than three times EmployeeParticipant’s “base amount” (as amount”(as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Participant shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Participant (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefitpayment, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times EmployeeParticipant’s base amount, then Employee Participant shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 Agreement shall require the Company (or any of its Affiliates) to be responsible for, or have any liability or obligation with respect to, EmployeeParticipant’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess ​ ​ to the Company upon notification that an overpayment has been made. Nothing in this Section 24 23 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times Employeethe Executive’s “base amount” (as amount”(as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 ‎7 shall require the Company (or any of its Affiliates) to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreementthe Plan, if Employee an Eligible Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreementthe Plan, together with any other payments and benefits which Employee such Eligible Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement the Plan shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee such Eligible Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times Employeesuch Eligible Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee such Eligible Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee such Eligible Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employeesuch Eligible Executive’s base amount, then Employee such Eligible Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 6 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s such Eligible Executives’ excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) 1.00 less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) 1.00 less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 23 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreementthe Plan, if Employee an Eligible Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreementthe Plan, together with any other payments and benefits which Employee such Eligible Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement the Plan shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee such Eligible Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times Employeesuch Eligible Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee such Eligible Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-after- tax position to Employee such Eligible Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employeesuch Eligible Executive’s base amount, then Employee such Eligible Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 6 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s such Eligible Executives’ excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section section 4999 of the Code Code, or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes, including any federal, state, municipal, and local income or employment taxes, and taking into account the phase out of itemized deductions and personal exemptions). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. , in all instances in accordance with Section 409A. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company or the Employer in good faith; provided, however, that %3) no portion of Employee’s payments or benefits the receipt or enjoyment of which Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of section 280G(b) of the Code will be taken into account; %3) no portion of Employee’s payments or benefits will be taken into account which, in the opinion of tax counsel (“Tax Counsel”) for the Company does not constitute a parachute payment (including by reason of section 280G(b)(4)(A) of the Code); %3) in calculating the applicable excise tax under section 4999 of the Code, no portion of Employee’s payments or benefits will be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the base amount that is allocable to such reasonable compensation; and %3) the value of any non-cash benefit or any deferred payment or benefit will be determined by Tax Counsel or the Company’s independent auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. At the time that payments are made under this Agreement, the Company will provide Employee with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations, including any opinions or other advice the Company received from Tax Counsel, the Company’s independent auditor, or other advisors or consultants (and any such opinions or advice which are in writing will be attached to the statement). If a reduced payment or benefit is made or provided provided, and through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company or the applicable affiliate upon notification that an overpayment has been made. Nothing The fact that Employee’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 24 Article X will not limit or otherwise affect any other rights of Employee under this Agreement or otherwise. All determinations required by this Article X will be made at the expense of the Company. However, nothing in this Article X shall require the Company or any affiliate to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 23 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company Employer or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of Employer and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code Code, or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company Employer in good faith. If a reduced payment or benefit is made or provided provided, and through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company Employer (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company Employer upon notification that an overpayment has been made. Nothing in this Section 24 Article IX shall require the Company Employer to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but EXHIBIT 10.1 not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section section 4999 of the Code Code, or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes, including any federal, state, municipal, and local income or employment taxes, and taking into account the phase out of itemized deductions and personal exemptions). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. , in all instances in accordance with Section 409A. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith; provided, however, that (a) no portion of Employee’s payments or benefits the receipt or enjoyment of which Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of section 280G(b) of the Code will be taken into account; (b) no portion of Employee’s payments or benefits will be taken into account which, in the opinion of tax counsel (“Tax Counsel”) for the Company does not constitute a parachute payment (including by reason of section 280G(b)(4)(A) of the Code); (c) in calculating the applicable excise tax under section 4999 of the Code, no portion of Employee’s payments or benefits will be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the base amount that is allocable to such reasonable compensation; and (d) the value of any non-cash benefit or any deferred payment or benefit will be determined by Tax Counsel or the Company’s independent auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. At the time that payments are made under this Agreement, the Company will provide Employee with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations, including any opinions or other advice the Company received from Tax Counsel, the Company’s independent auditor, or other advisors or consultants (and any such opinions or advice which are in writing will be attached to the statement). If a reduced payment or benefit is made or provided provided, and through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company or the applicable affiliate upon notification that an overpayment has been made. Nothing The fact that Employee’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 24 Article X will not limit or otherwise affect any other rights of Employee under this Agreement or otherwise. All determinations required by this Article X will be made at the expense of the Company. However, nothing in this Article X shall require the Company or any affiliate to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code Code, or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes, including any federal, state, municipal, and local income or employment taxes, and taking into account the phase out of itemized deductions and personal exemptions). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order, in all instances in accordance with Section 409A (as defined below). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith; provided, however, that (i) no portion of Executive’s payments or benefits the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of section 280G(b) of the Code will be taken into account; (ii) no portion of Executive’s payments or benefits will be taken into account which, in the opinion of tax counsel (“Tax Counsel”) for the Company or the Parent Company does not constitute a parachute payment (including by reason of section 280G(b)(4)(A) of the Code); (iii) in calculating the applicable excise tax under section 4999 of the Code, no portion of Executive’s payments or benefits will be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the base amount that is allocable to such reasonable compensation; and (iv) the value of any non-cash benefit or any deferred payment or benefit will be determined by Tax Counsel or the Parent Company’s independent auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. At the time that payments are made under this Agreement, the Company and/or the Parent Company will provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations, including any opinions or other advice the Company and/or the Parent Company received from Tax Counsel, the Parent Company’s independent auditor, or other advisors or consultants (and any such opinions or advice which are in writing will be attached to the statement). If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with all other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company or the Parent Company upon notification that an overpayment has been made. Nothing The fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 24 5 will not limit or otherwise affect any other rights of Executive under this Agreement or otherwise. All determinations required by this Section 5 will be made at the expense of the Company or the Parent Company. However, nothing in this Section 5 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Code Section 280G(c) of the Code)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2) of the Code)), then the such payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three (3) times EmployeeExecutive’s “base amount” (as defined in Code Section 280G(b)(3) of the Code)) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Code Section 4999 of the Code or (b) paid in full, whichever produces the better net after-after tax position to Employee the Executive (taking into account any applicable excise tax under Code Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits mentioned hereunder, if as applicable, shall be made by reducing, reducing such payments and benefits first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessaryof any severance payments due pursuant to Article 3 paid in cash, through to such payment or benefit that would with later payments being reduced first. Thereafter, the reduction shall be made first in timeby: (A) andthe waiver of accelerated vesting of equity awards, thenwith awards having a later vesting date being reduced first; (B) next, cutting back on the benefit continuation pursuant to Section 3; and (C) lastly, reducing any benefit to be provided in-kind hereunder in a similar orderall other payments or benefits, with later payments being reduced first. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company Holdings in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three (3) times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. In the event any reduction under this Agreement is disputed by the Executive, then determinations required to be made under this Section 3.04, including the assumptions to be utilized in arriving at such determination, shall be made by an outside nationally recognized accounting or consulting firm selected by Holdings or the Board, in its reasonable discretion (the “Accounting Firm”), which shall provide detailed supporting calculations both to Holdings and the Executive within 15 business days of the receipt of notice from the Executive that there has been a payment hereunder, or such earlier time as is requested by Holdings. In no event shall the Accounting Firm be an accounting firm that was, or is, serving as accountant or auditor for the individual, entity or group affecting the change of ownership or effective control of Holdings. Nothing in this Section 24 3.04 shall require the Company or Holdings (or any of their respective Affiliates) to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Code Section 4999 of the Code4999.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 3.4.5. shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.. OFFSHORE GROUP INVESTMENT LIMITED EMPLOYMENT AGREEMENT

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if the Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which the Employee has the right to receive from the Company, any of its Affiliates or a party to a transaction with the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by the Employee from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times the Employee’s “base amount” (as amount”(as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by the Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to the Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faithfaith in reliance on the advice of nationally recognized tax counsel mutually acceptable to the Company and the Employee. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times the Employee’s base amount, then the Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 11 shall require the Company (or any of its Affiliates) to be responsible for, or have any liability or obligation with respect to, the Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from Company, any member of the Company Group or any of its their respective affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from Company, any member of the Company Group or any of its their respective affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that NuZee, Inc. Executive Employment Agreement Executive: Xxxxxxxx Xxxxxxxxx would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from Company, any member of the Company Group or any of its their respective affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 22 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee the Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times Employeethe Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employeethe Executive’s base amount, then Employee the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 5.2.4 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employeethe Executive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the separation payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee such Executive has the right to receive from the Company Parent or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of Parent and its affiliates shall Affiliates will be one dollar ($1.00) less than three times Employee’s Executive's “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company Parent in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefitpayment, when aggregated with other payments and benefits from the Company Parent (or any of its affiliates Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s Executive's base amount, then Employee Executive shall immediately repay such excess to the Company Parent (or its Affiliates) upon notification that an overpayment has been made. Nothing in this Section 24 1(g) shall require the Company Parent or Employer to be responsible for, or have any liability or obligation with respect to, Employee’s Executive's excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of and its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement (beginning with any benefit to be paid in cash hereunder) shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company Compensation Committee in good faithfaith and in consultation with tax and legal advisors of the Company. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 30 shall require the Company to be responsible for, . or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code Code, or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided provided, and through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 15 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “‘disqualified individual” ’ (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company ZS Pharma or any of its affiliatesAffiliates, would constitute a “‘parachute payment” ’ (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of ZS Pharma and its affiliates shall Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as amount”(as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company ZS Pharma in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company ZS Pharma (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company ZS Pharma upon notification that an overpayment has been made. Nothing in this Section 24 2(d) shall require the Company ZS Pharma (or any of its Affiliates) to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.”

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Xx. Xxxxxx is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Xx. Xxxxxx has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Xx. Xxxxxx from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times Employee’s Xx. Xxxxxx’x “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Xx. Xxxxxx shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Xx. Xxxxxx (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s Xx. Xxxxxx’x base amount, then Employee he shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 5.1.4 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s Xx. Xxxxxx’x excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Participant is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee Participant has the right to receive from the Company or any of its affiliatesAffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Participant from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times EmployeeParticipant’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Participant shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Participant (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefitpayment, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times EmployeeParticipant’s base amount, then Employee Participant shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 Agreement shall require the Company (or any of its Affiliates) to be responsible for, or have any liability or obligation with respect to, EmployeeParticipant’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 26 shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Code Section 280G(c) of the Code)), and the payments and benefits provided for in under this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2) of the Code)), then the payments and benefits provided for in under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as amount”(as defined in Code Section 280G(b)(3) of the Code)) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Code Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Code Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by a nationally recognized accounting firm mutually agreed to by the Company in good faithand Executive. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliates, would constitute a ““ parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of its affiliates shall be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and and, through error or otherwise otherwise, that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 26 shall require any member of the Company Group to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit ​ ​ that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 23 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company or any of its affiliates shall be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made ​ ​ by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 23 shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Employee Executive is a “disqualified individual” (as defined in Section section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee Executive has the right to receive from the Company or any of its affiliatesAffiliates or any other party, would constitute a “parachute payment” (as defined in Section section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (ai) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee Executive from the Company or any of and its affiliates shall Affiliates will be one dollar ($1.00) less than three times EmployeeExecutive’s “base amount” (as defined in Section section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee Executive shall be subject to the excise tax imposed by Section section 4999 of the Code or (bii) paid in full, whichever produces the better net after-tax position to Employee Executive (taking into account any applicable excise tax under Section section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or any of its affiliates Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times EmployeeExecutive’s base amount, then Employee Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 24 8(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section section 4999 of the Code.