Common use of Code Section 280G Clause in Contracts

Code Section 280G. If the present value of all payments, distributions and benefits provided to the Participant or for the Participant’s benefit pursuant to the terms of this Agreement or otherwise which constitute a “parachute payment” when aggregated with other payments, distributions, and benefits which constitute “parachute payments,” exceed two hundred ninety-nine percent (299%) of the Participant’s “base amount,” then such payments, distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), whichever of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in Section 280G(b)(2) of the Code, without regard to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2), of such aggregate “parachute payments” as determined by the Company exceeds the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by the Company in accordance with the order of priority set forth below so that such reduced amount will result in no portion of the payments, distributions and benefits being subject to the Excise Tax. Such payments, distributions and benefits will be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Participant’s Equity Awards.

Code Section 280G. If the present value of all payments, distributions and benefits provided to the Participant or for the Participant’s benefit pursuant to the terms of Notwithstanding anything in this Agreement or otherwise which constitute a “parachute payment” when aggregated with other paymentselsewhere to the contrary, distributions, if the aggregate of all amounts and benefits which constitute due to the Executive (or the Executive’s beneficiaries) under this Agreement or under any other plan, program, agreement or arrangement of the Company or any of its Affiliates (collectively, “Contingent Benefits”), would cause the Executive to have “parachute payments,” exceed two hundred ninety-nine percent (299%) of the Participant’s “base amount,” then as such paymentsterm is defined in and under Code Section 280G, distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion the imposition of such payments, distributions and benefits being subject excise taxes pursuant to the excise tax imposed by Section 4999 of the Code or loss of deduction pursuant to Code Section 280G, the Company will reduce such payments and benefits so that the Parachute Value of all Contingent Benefits, in the aggregate, equals the Safe Harbor Amount minus $1,000.00 (the "Required Reduction"). All determinations with respect to this Section 18(b) will be made by an independent nationally-recognized United States public accounting firm chosen, and paid for, by the Company (the “Excise TaxAuditor”). Notwithstanding any provision to the contrary in this Agreement or elsewhere, any Required Reduction will be implemented as follows: first, by reducing any cash payments to be made to the Executive; second, by cancelling any outstanding equity or equity-based compensation awards that are subject to performance vesting (“Performance-Based Equity”), whichever the performance goals for which have not been met as of the foregoing amounts (taking into account Termination Date or, if later, the applicable federalChange in Control date; third, state and local income taxes and by cancelling the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in Section 280G(b)(2) of the Code, without regard to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2), of such aggregate “parachute payments” as determined by the Company exceeds the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by the Company in accordance with the order of priority set forth below so that such reduced amount will result in no portion of the payments, distributions and benefits being subject to the Excise Tax. Such payments, distributions and benefits will be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order (i) any of the date of grant Executive’s outstanding Performance-Based Equity the performance goals for which were met as of the ParticipantTermination Date or, if later, the Change in Control date, and (ii) any of the Executive’s Equity Awards.other outstanding equity awards; and fourth, by eliminating the Company’s payment of the premiums for any post-termination continuation of health coverage benefits for the Executive. All determinations made by the Auditor under this Section 18(b) will be binding upon the Company and the Executive and will be made as soon as reasonably practicable following the event giving rise to the Contingent Benefits. The following terms will have the following meanings for purposes of this Section 18(b):

Code Section 280G. If In the present value event the Company (or its successor) and Executive agree, based on the advice of an independent nationally recognized public accounting firm engaged by the Company, that part or all paymentsof the consideration, distributions and compensation or benefits provided to the Participant be paid to or for the Participant’s benefit pursuant to the terms of Executive under this Agreement or otherwise which constitute a “parachute payment” when aggregated with other payments, distributions, and benefits which constitute “"parachute payments,” exceed two hundred ninety-nine percent (299%) of the Participant’s “base amount,” then such payments, distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), whichever of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in " under Section 280G(b)(2) of the CodeCode ("Section 280G"), then either (a) or (b) below shall apply. (a) Except as provided in Section 21(b) below, if the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to or for the benefit of Executive under any other plan, arrangement or agreement which constitute "parachute payments", calculated as provided under Section 280G, (collectively, the "Parachute Amount") exceeds 2.99 times Executive's "base amount", as defined in Section 280G(b)(3) (the "Base Amount"), the amounts constituting parachute payments that would otherwise be payable to Executive or for Executive's benefit shall be reduced to the extent necessary so that the Parachute Amount is equal to 2.99 times the Base Amount (the "Reduced Amount"). (b) The Parachute Amount shall not be reduced as provided in Section 21(a) if, based on the advice of such public accounting firm, without regard such reduction Executive would be entitled to Code receive and retain, on a net after-tax basis (including, without limitation, after imposition of any excise taxes payable under Section 280G(b)(2)(A)(ii4999 of the Code); and “base , an amount which is greater than the amount” has , on a net after-tax basis, that Executive would be entitled to retain upon receipt of the meaning ascribed to it in Code Section 280G and the regulations thereunderReduced Amount. If the “present value” as defined determination made above results in Code Sections 280G(d)(4a reduction under Section 21(a) and 1274(b) (2), of such aggregate “parachute payments” as determined by the Company exceeds payments that would otherwise be paid to or for the 299% limitation set forth herein and subparagraph (ii) above appliesbenefit of Executive, such payments, distributions reduction in payments shall be first applied to reduce any cash severance payments that Executive would otherwise be entitled to receive hereunder and shall thereafter be applied to reduce other payments and benefits shall be reduced by the Company in accordance with the order of priority set forth below so a manner that such reduced amount will would not result in no portion of the payments, distributions and benefits being subject subjecting Executive to the Excise Tax. Such payments, distributions and benefits will be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Participant’s Equity Awards.additional taxation under Section 409A.

Code Section 280G. If a. In the present value of all payments, distributions and event that: (i) the aggregate payments or benefits provided to be made or afforded to the Participant Executive which are deemed to be “parachute payments” as defined in Section 280G of the Code or for any successor thereof, (the Participant’s benefit pursuant “Termination Benefits”) would be deemed to the terms of this Agreement or otherwise which constitute a include an “excess parachute payment” when aggregated with other payments, distributions, and benefits which constitute “parachute payments,” exceed two hundred ninety-nine percent (299%) under Section 280G of the ParticipantCode; and (ii) if (A) such Termination Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three times the Executive’s “base amount,” then as determined in accordance with Section 280G of the Code, and (B) the Non-Triggering Amount less the product of the marginal rate of any applicable state and federal income tax and the Non-Triggering Amount would be greater than the aggregate value of the Termination Benefits (without such payments, distributions and benefits shall either reduction) minus (a) the amount of tax required to be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to by the excise tax imposed Executive thereon by Section 4999 of the Code and further minus (b) the product of the Termination Benefits and the marginal rate of any applicable state and federal income tax, then (iii) the Termination Benefits shall be reduced to the Non-Triggering Amount. b. If it is determined that the Executive’s Termination Benefits shall be reduced pursuant to Section 7(a), the Termination Benefits shall be reduced in the following order: (i) the cash severance payment in Section 2(a)(i), (ii) the acceleration of vesting of equity awards described in Section 2(a)(ii), and (iii) the benefits continuation described in Section 2(a)(iii). Reduction in either cash payments or equity compensation benefits shall be made prorata between and among benefits that are subject to Section 409A of the Code and benefits that are exempt from Section 409A of the Code. c. Any determination of whether there will be a limitation on payments to the Executive pursuant to Section 7(a) above shall be made by the nationally recognized certified public accounting firm used by the Company immediately prior to the Change of Control or, if such firm declines to serve, such other nationally recognized certified public accounting firm as may be designated by the Executive (the “Excise TaxAccounting Firm”), whichever which shall provide detailed supporting calculations both to the Company and the Executive not less than ten (10) business days prior to the Change of Control. All fees and expenses of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined Accounting Firm shall be borne solely by the Company. As used hereinAny determination by the Accounting Firm shall be binding upon the Company and the Executive. For purposes of making the calculations required by this Section 7, “parachute payment” has the meaning ascribed to it in Section 280G(b)(2) Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. d. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, without regard if successful, would result in a loss by the Company of any portion if its tax deduction for payments made by the Company to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed Executive due to it in Code the application of Section 280G and of the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2)Code. e. Notwithstanding any other provision of this Section 7, of such aggregate “parachute payments” as determined by the Company exceeds may withhold and pay over to the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by Internal Revenue Service for the Company in accordance with benefit of the order of priority set forth below so that such reduced amount will result in no Executive all or any portion of the payments, distributions and benefits being subject to applicable taxes under Section 4999 of the Excise Tax. Such payments, distributions and benefits will Code that it determines in good faith that it is or may be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of future required to withhold, and the date of grant of the Participant’s Equity AwardsExecutive hereby consents to such withholding.

Code Section 280G. If You hereby acknowledge and agree that, from and following the present value of all paymentsClosing Date, distributions and benefits provided you will not be entitled to the Participant or for the Participant’s benefit pursuant excise tax gross-up set forth in Section 4(g)(iv) of your Employment Agreement. Notwithstanding anything to the terms contrary in Section 4(g)(iv) of your Employment Agreement, you hereby agree that in the event that, after the Closing Date, any payment under this Agreement letter agreement or otherwise which constitute a “parachute payment” when aggregated your Employment Agreement, either separately or in conjunction with any other payments, distributions, and benefits which constitute (a) constitutes “parachute payments,” exceed two hundred ninety-nine percent (299%) within the meaning of Section 280G of the Participant’s “base amount,” then such paymentsCode, distributions and benefits shall either (b) but for this provision, would be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to the excise tax imposed by Section 4999 of the Code Code, then such payments and benefits will be either (i) delivered in full, or (ii) delivered as to such lesser extent that would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the “Excise Tax”)Code, whichever of the foregoing amounts (amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax) excise tax imposed by Section 4999 of the Code (and any equivalent state or local excise taxes), results in the receipt by the Participant you on an after-tax basis basis, of materially larger paymentsthe greatest amount of benefits, distributions notwithstanding that all or some portion of such payments and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in may be taxable under Section 280G(b)(2) 4999 of the Code, without regard to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it . Any reduction in Code Section 280G and the regulations thereunder. If the “present value” as defined payments and/or benefits required by this provision will occur in Code Sections 280G(d)(4) and 1274(b) (2), of such aggregate “parachute payments” as determined by the Company exceeds the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by the Company in accordance with the order of priority set forth below so that such reduced amount will result in no portion of the payments, distributions and benefits being subject to the Excise Tax. Such payments, distributions and benefits will be reduced by the Company in accordance with the following order of priority order: (A) reduction of cash payments; (B) cancellation reduction of accelerated vesting acceleration of Equity Awardsequity awards; and (C) reduction of employee benefitsother benefits paid or provided to you. If In the event that acceleration of vesting of Equity Award compensation equity awards is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of for equity awards. If two or more equity awards are granted on the Participant’s Equity Awardssame date, each award will be reduced on a pro-rata basis.

Code Section 280G. If In the present value event the Company (or its successor) and Executive agree, based on the advice of an independent nationally recognized public accounting firm engaged by the Company, that part or all paymentsof the consideration, distributions and compensation or benefits provided to the Participant be paid to or for the Participant’s benefit pursuant to the terms of Executive under this Agreement or otherwise which constitute a “parachute payment” when aggregated with other payments, distributions, and benefits which constitute “parachute payments,” exceed two hundred ninety-nine percent (299%) of the Participant’s “base amount,” then such payments, distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), whichever of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in under Section 280G(b)(2) of the Code, without regard then either (a) or (b) below shall apply. a. Except as provided in (b), if the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to or for the benefit of Executive under any other plan, arrangement or agreement which constitute “parachute payments”, calculated as provided under Code Section 280G(b)(2)(A)(ii); and 280G, (collectively, the “Parachute Amount”) exceeds 2.99 times Executive’s “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunder. If the “present value” ”, as defined in Section 280G(b)(3) of the Code Sections 280G(d)(4) and 1274(b) (2the “Base Amount”), of such aggregate the amounts constituting “parachute payments” as determined by the Company exceeds the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits which would otherwise be payable to Executive or for Executive’s benefit shall be reduced by to the Company in accordance with the order of priority set forth below extent necessary so that the Parachute Amount is equal to 2.99 times the Base Amount (the “Reduced Amount”). b. The Parachute Amounts shall not be reduced as provided in (a) above if, based on the advice of such reduced public accounting firm, without such reduction Executive would be entitled to receive and retain, on a net after-tax basis (including, without limitation, after imposition of any excise taxes payable under Section 4999 of the Code), an amount will which is greater than the amount, on a net after-tax basis, that Executive would be entitled to retain upon receipt of the Reduced Amount. If the determination made above results in a reduction under (b) above of the payments that would otherwise be paid to or for the benefit of Executive, such reduction in payments shall be first applied to reduce any cash severance payments that Executive would otherwise be entitled to receive hereunder and shall thereafter be applied to reduce other payments and benefits in a manner that would not result in no portion subjecting Executive to additional taxation under Section 409A of the payments, distributions and benefits being subject to the Excise Tax. Such payments, distributions and benefits will be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Participant’s Equity AwardsCode.

Code Section 280G. If In the present value event the Company (or its successor) and Executive agree, based on the advice of an independent nationally recognized public accounting firm engaged by the Company, that part or all paymentsof the consideration, distributions and compensation or benefits provided to the Participant be paid to or for the Participant’s benefit pursuant to the terms of Executive under this Agreement or otherwise which constitute a “parachute payment” when aggregated with other payments, distributions, and benefits which constitute “"parachute payments,” exceed two hundred ninety-nine percent (299%) of the Participant’s “base amount,” then such payments, distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), whichever of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in " under Section 280G(b)(2) of the CodeCode ("Section 280G"), then either (a) or (b) below shall apply. a. Except as provided in Section 21.b, if the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to or for the benefit of Executive under any other plan, arrangement or agreement which constitute "parachute payments", calculated as provided under Section 280G, (collectively, the "Parachute Amount") exceeds 2.99 times Executive's "base amount", as defined in Section 280G(b)(3) (the "Base Amount"), the amounts constituting "parachute payments" that would otherwise be payable to Executive or for Executive's benefit shall be reduced to the extent necessary so that the Parachute Amount is equal to 2.99 times the Base Amount (the "Reduced Amount"). b. The Parachute Amount shall not be reduced as provided in Section 21.a if, based on the advice of such public accounting firm, without regard such reduction Executive would be entitled to Code receive and retain, on a net after-tax basis (including, without limitation, after imposition of any excise taxes payable under Section 280G(b)(2)(A)(ii4999 of the Code); and “base , an amount which is greater than the amount” has , on a net after-tax basis, that Executive would be entitled to retain upon receipt of the meaning ascribed to it in Code Section 280G and the regulations thereunderReduced Amount. If the “present value” as defined determination made above results in Code Sections 280G(d)(4) and 1274(b) (2), a reduction under Section 21.a of such aggregate “parachute payments” as determined by the Company exceeds payments that would otherwise be paid to or for the 299% limitation set forth herein and subparagraph (ii) above appliesbenefit of Executive, such payments, distributions reduction in payments shall be first applied to reduce any cash severance payments that Executive would otherwise be entitled to receive hereunder and shall thereafter be applied to reduce other payments and benefits shall be reduced by the Company in accordance with the order of priority set forth below so a manner that such reduced amount will would not result in no portion of the payments, distributions and benefits being subject subjecting Executive to the Excise Tax. Such payments, distributions and benefits will be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Participant’s Equity Awards.additional taxation under Section 409A.

Code Section 280G. a) If the present value of all payments, distributions and any severance or other benefits provided to the Participant or for the Participant’s benefit pursuant to the terms of in this Agreement or otherwise which payable to Employee (a “Payment”) would (1) constitute a “parachute payment” when aggregated with other paymentswithin the meaning of Section 280G of the Internal Revenue Code of 1986, distributionsas amended, and benefits which constitute the rules and regulations promulgated thereunder (the “parachute payments,” exceed two hundred ninety-nine percent Code”), and (299%2) of the Participant’s “base amount,” then such paymentsbut for this sentence, distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), whichever then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (i) the largest portion of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in Section 280G(b)(2) of the Code, without regard to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2), of such aggregate “parachute payments” as determined by the Company exceeds the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by the Company in accordance with the order of priority set forth below so Payment that such reduced amount will would result in no portion of the paymentsPayment being subject to the Excise Tax or (ii) the largest portion, distributions up to and benefits being including the total, of the Payment, whichever amount, after taking into account all applicable U.S. federal, state, local, and other taxes and the Excise Tax (all computed at the highest applicable marginal rate), results in Employee’s receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. Such If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, distributions such reduction shall occur in the manner that results in the greatest economic benefit for Employee, as determined by the Firm (as defined below). If more than one method of reduction shall result in the same economic benefit, the items so reduced shall be reduced pro rata. If deemed necessary for compliance with Section 409A, any reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and benefits then with respect to amounts that are such “deferred compensation.” To the extent any such payment is to be made over time (e.g., in installments), then the payments shall be reduced in reverse chronological order. Further, to the extent that any Payments are submitted to the Company’s stockholders for approval in accordance with U.S. Treasury Regulation Section 1.280G-1 Q&A 7, any reduction in, or waiver of, such Payments required by such vote will be reduced applied without any application of discretion by Employee and in the order prescribed by this Section 14. In no event shall the Company or any shareholder be liable to Employee for any amounts not paid as a result of the operation of this Section 14. b) Unless the Company and Employee otherwise agree in writing, the Company will engage a nationally recognized firm of independent public accountants selected by the Company and to which Employee agrees, or such other person or entity to which the parties mutually agree (the “Firm”) to make any determinations required under this Section 14, which determinations will be made in accordance writing by the Firm. The Company and Employee will furnish to the Firm such information and documents as the Firm may reasonably request in order to make its determinations under this Section 14. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 14. For purposes of making the following order calculations required by this Section 14, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; Sections 280G and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order 4999 of the date of grant of the Participant’s Equity AwardsCode.

Code Section 280G. If In the event the Company (or its successor) and Executive agree, based on the advice of an independent nationally recognized public accounting firm engaged by the Company, that part or all of the consideration, compensation or benefits to be paid to or for the benefit of Executive under this Agreement constitute “parachute payments” under Section 280G(b)(2) of the Code (“Section 280G”), then either (a) or (b) below shall apply. a. Except as provided in Section 21.b, if the aggregate present value of all such parachute payments, distributions and singularly or together with the aggregate present value of any consideration, compensation or benefits provided to the Participant be paid to or for the Participant’s benefit pursuant to the terms of this Agreement Executive under any other plan, arrangement or otherwise which constitute a “parachute payment” when aggregated with other payments, distributions, and benefits agreement which constitute “parachute payments,” exceed two hundred ninety-nine percent ”, calculated as provided under Section 280G, (299%collectively, the “Parachute Amount”) of the Participantexceeds 2.99 times Executive’s “base amount,”, as defined in Section 280G(b)(3) (the “Base Amount”), the amounts constituting “parachute payments” then such paymentsthat would otherwise be payable to Executive or for Executive’s benefit shall be reduced to the extent necessary so that the Parachute Amount is equal to 2.99 times the Base Amount (the “Reduced Amount”). b. The Parachute Amount shall not be reduced as provided in Section 21.a if, distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion based on the advice of such paymentspublic accounting firm, distributions without such reduction Executive would be entitled to receive and benefits being subject to the retain, on a net after-tax basis (including, without limitation, after imposition of any excise tax imposed by taxes payable under Section 4999 of the Code (the “Excise Tax”Code), whichever of an amount which is greater than the foregoing amounts (taking into account the applicable federalamount, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an a net after-tax basis of materially larger paymentsbasis, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed that Executive would be entitled to it in Section 280G(b)(2) retain upon receipt of the Code, without regard to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunderReduced Amount. If the “present value” as defined determination made above results in Code Sections 280G(d)(4) and 1274(b) (2), a reduction under Section 21.a of such aggregate “parachute payments” as determined by the Company exceeds payments that would otherwise be paid to or for the 299% limitation set forth herein and subparagraph (ii) above appliesbenefit of Executive, such payments, distributions reduction in payments shall be first applied to reduce any cash severance payments that Executive would otherwise be entitled to receive hereunder and shall thereafter be applied to reduce other payments and benefits shall be reduced by the Company in accordance with the order of priority set forth below so a manner that such reduced amount will would not result in no portion of the payments, distributions and benefits being subject subjecting Executive to the Excise Tax. Such payments, distributions and benefits will be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Participant’s Equity Awards.additional taxation under Section 409A.

Code Section 280G. If To the extent that any amount payable to Executive hereunder, when combined with any other payment or benefit (collectively, the “Payments”, which shall include, without limitation, the vesting of any equity awards or other non-cash benefit or property) that could be considered a “parachute payment,” as such term is defined under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), exceed the limitations of Section 280G of the Code such that an excise tax will be imposed under Section 4999 of the Code, the Payments shall be either (a) reduced (but not below zero) so that the present value of all payments, distributions and benefits provided to the Participant or for the Participant’s benefit pursuant to the terms of this Agreement or otherwise which constitute a “parachute payment” when aggregated with other payments, distributions, and benefits which constitute “parachute payments,” exceed two hundred ninety-nine percent such total Payments received by Executive will be one dollar (299%$1.00) of the Participantless than three times Executive’s “base amount,” then such payments, distributions (as defined in Section 280G(b)(3) of the Code) and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in so that no portion of such payments, distributions and benefits being Payments received by Executive shall be subject to the excise tax imposed by Section 4999 of the Code, such parachute payments shall be reduced in the following order: (a) any Prior Year Bonus, (b) any portion of the CoC Severance Payment that is not “nonqualified deferred compensation” for purposes of Code Section 409A (c) any other cash amounts payable to Executive (including the Restricted Cash) that is not “Excise Tax”)nonqualified deferred compensation” for purposes of Code Section 409A, (d) any benefits continuation valued as parachute payments, (e) any accelerated vesting of any equity awards and (f) any portion of the CoC Severance Payment and any other cash amounts that are “nonqualified deferred compensation” for purposes of Code Section 409A, or (b) paid in full, whichever of (a) or (b) produces the foregoing amounts better net after tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). For purposes of making the calculations and determinations required by this Section 5, the Company may engage an independent accounting firm or independent counsel to make such determinations, which shall be conclusive and binding on the Company and Executive, and such independent accounting firm or independent counsel may rely on reasonable, good faith assumptions and approximations concerning the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in Section 280G(b)(2) of the Code, without regard to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2), of such aggregate “parachute payments” as determined by the Company exceeds the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by the Company in accordance with the order of priority set forth below so that such reduced amount will result in no portion Section 4999 of the payments, distributions and benefits being subject to the Excise Tax. Such payments, distributions and benefits will be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Participant’s Equity AwardsCode.

Code Section 280G. 1) If the present value of all payments, distributions and any severance or other benefits provided to the Participant or for the Participant’s benefit pursuant to the terms of in this Agreement or otherwise which payable to Employee (a “Payment”) would (1) constitute a “parachute payment” when aggregated with other paymentswithin the meaning of Section 280G of the Internal Revenue Code of 1986, distributionsas amended, and benefits which constitute the rules and regulations promulgated thereunder (the “parachute payments,” exceed two hundred ninety-nine percent Code”), and (299%2) of the Participant’s “base amount,” then such paymentsbut for this sentence, distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), whichever then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (i) the largest portion of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in Section 280G(b)(2) of the Code, without regard to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2), of such aggregate “parachute payments” as determined by the Company exceeds the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by the Company in accordance with the order of priority set forth below so Payment that such reduced amount will would result in no portion of the paymentsPayment being subject to the Excise Tax or (ii) the largest portion, distributions up to and benefits being including the total, of the Payment, whichever amount, after taking into account all applicable U.S. federal, state, local, and other taxes and the Excise Tax (all computed at the highest applicable marginal rate), results in Employee’s receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. Such If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, distributions such reduction shall occur in the manner that results in the greatest economic benefit for Employee, as determined by the Firm (as defined below). If more than one method of reduction shall result in the same economic benefit, the items so reduced shall be reduced pro rata. If deemed necessary for compliance with Section 409A, any reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and benefits then with respect to amounts that are such “deferred compensation.” To the extent any such payment is to be made over time (e.g., in installments), then the payments shall be reduced in reverse chronological order. Further, to the extent that any Payments are submitted to the Company’s stockholders for approval in accordance with U.S. Treasury Regulation Section 1.280G-1 Q&A 7, any reduction in, or waiver of, such Payments required by such vote will be reduced applied without any application of discretion by Employee and in the order prescribed by this Section 10. In no event shall the Company or any shareholder be liable to Employee for any amounts not paid as a result of the operation of this Section 10. 2) Unless the Company and Employee otherwise agree in writing, the Company will engage a nationally recognized firm of independent public accountants selected by the Company and to which Employee agrees, or such other person or entity to which the parties mutually agree (the “Firm”) to make any determinations required under this Section 10, which determinations will be made in accordance writing by the Firm. The Company and Employee will furnish to the Firm such information and documents as the Firm may reasonably request in order to make its determinations under this Section 10. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 10. For purposes of making the following order calculations required by this Section 10, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; Sections 280G and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order 4999 of the date of grant of the Participant’s Equity AwardsCode.

Code Section 280G. (a) If the present value of all payments, distributions severance and other benefits provided to the Participant or for the Participant’s benefit pursuant to the terms of in this Agreement or otherwise which payable to Employee (a “Payment”) would (1) constitute a “parachute payment” when aggregated with other paymentswithin the meaning of Section 280G of the Internal Revenue Code of 1986, distributionsas amended, and benefits which constitute the rules and regulations promulgated thereunder (the “parachute payments,” exceed two hundred ninety-nine percent Code”), and (299%2) of the Participant’s “base amount,” then such paymentsbut for this sentence, distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), whichever then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (i) the largest portion of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in Section 280G(b)(2) of the Code, without regard to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2), of such aggregate “parachute payments” as determined by the Company exceeds the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by the Company in accordance with the order of priority set forth below so Payment that such reduced amount will would result in no portion of the paymentsPayment being subject to the Excise Tax or (ii) the largest portion, distributions up to and benefits being including the total, of the Payment, whichever amount, after taking into account all applicable U.S. federal, state, local, and other taxes and the Excise Tax (all computed at the highest applicable marginal rate), results in Employee’s receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. Such If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, distributions such reduction shall occur in the manner that results in the greatest economic benefit for Employee, as determined by the Firm (as defined below). If more than one method of reduction shall result in the same economic benefit, the items so reduced shall be reduced pro rata. If deemed necessary for compliance with Section 409A, any reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and benefits then with respect to amounts that are such “deferred compensation.” To the extent any such payment is to be made over time (e.g., in installments), then the payments shall be reduced in reverse chronological order. Further, to the extent that any Payments are submitted to the Company’s stockholders for approval in accordance with U.S. Treasury Regulation Section 1.280G-1 Q&A 7, any reduction in, or waiver of, such Payments required by such vote will be reduced applied without any application of discretion by Employee and in the order prescribed by this Section 10. In no event shall the Company or any shareholder be liable to Employee for any amounts not paid as a result of the operation of this Section 10. (b) Unless the Company and Employee otherwise agree in writing, the Company will engage a nationally recognized firm of independent public accountants selected by the Company and to which Employee agrees, or such other person or entity to which the parties mutually agree (the “Firm”) to make any determinations required under this Section 10, which determinations will be made in accordance writing by the Firm. The Company and Employee will furnish to the Firm such information and documents as the Firm may reasonably request in order to make its determinations under this Section 10. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 10. For purposes of making the following order calculations required by this Section 10, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; Sections 280G and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order 4999 of the date of grant of the Participant’s Equity AwardsCode.

Code Section 280G. If a. In the present value of all payments, distributions and event that: (i) the aggregate payments or benefits provided to be made or afforded to the Participant Executive which are deemed to be “parachute payments” as defined in Section 280G of the Code or for any successor thereof, (the Participant’s benefit pursuant “Termination Benefits”) would be deemed to the terms of this Agreement or otherwise which constitute a include an “excess parachute payment” when aggregated with other payments, distributions, and benefits which constitute “parachute payments,” exceed two hundred ninety-nine percent (299%) under Section 280G of the ParticipantCode; and (ii) if (A) such Termination Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three times the Executive’s “base amount,” then as determined in accordance with Section 280G of the Code, and (B) the Non-Triggering Amount less the product of the marginal rate of any applicable state and federal income tax and the Non-Triggering Amount would be greater than the aggregate value of the Termination Benefits (without such payments, distributions and benefits shall either reduction) minus (a) the amount of tax required to be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to by the excise tax imposed Executive thereon by Section 4999 of the Code and further minus (b) the product of the Termination Benefits and the marginal rate of any applicable state and federal income tax, then (iii) the Termination Benefits shall be reduced to the Non-Triggering Amount. b. If it is determined that the Executive’s Termination Benefits shall be reduced pursuant to Section 8(a), the Termination Benefits shall be reduced in the following order: (i) the cash severance payment in Section 3(a)(i), (ii) the acceleration of vesting of equity awards described in Section 3(a)(ii), and (iii) the benefits continuation described in Section 3(a)(iii). Reduction in either cash payments or equity compensation benefits shall be made prorata between and among benefits that are subject to Section 409A of the Code and benefits that are exempt from Section 409A of the Code. c. Any determination of whether there will be a limitation on payments to the Executive pursuant to Section 8(a) above shall be made by the nationally recognized certified public accounting firm used by the Company immediately prior to the Change of Control or, if such firm declines to serve, such other nationally recognized certified public accounting firm as may be designated by the Executive (the “Excise TaxAccounting Firm”), whichever which shall provide detailed supporting calculations both to the Company and the Executive not less than ten (10) business days prior to the Change of Control. All fees and expenses of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined Accounting Firm shall be borne solely by the Company. As used hereinAny determination by the Accounting Firm shall be binding upon the Company and the Executive. For purposes of making the calculations required by this Section 8, “parachute payment” has the meaning ascribed to it in Section 280G(b)(2) Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. d. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, without regard if successful, would result in a loss by the Company of any portion if its tax deduction for payments made by the Company to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed Executive due to it in Code the application of Section 280G and of the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2)Code. e. Notwithstanding any other provision of this Section 8, of such aggregate “parachute payments” as determined by the Company exceeds may withhold and pay over to the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by Internal Revenue Service for the Company in accordance with benefit of the order of priority set forth below so that such reduced amount will result in no Executive all or any portion of the payments, distributions and benefits being subject to applicable taxes under Section 4999 of the Excise Tax. Such payments, distributions and benefits will Code that it determines in good faith that it is or may be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of future required to withhold, and the date of grant of the Participant’s Equity AwardsExecutive hereby consents to such withholding.

Code Section 280G. (a) If the present value of all payments, distributions and any benefits provided to the Participant or for the Participant’s benefit pursuant to the terms of in this Agreement or otherwise which payable to Employee (a “Payment”) would (i) constitute a “parachute payment” when aggregated with other paymentswithin the meaning of Section 280G of the Internal Revenue Code of 1986, distributionsas amended, and benefits which constitute the rules and regulations promulgated thereunder (the “parachute payments,” exceed two hundred ninety-nine percent (299%) of the Participant’s “base amount,” then such paymentsCode”), distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such paymentsbut for this sentence, distributions and benefits being be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), whichever then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in Section 280G(b)(2) of the Code, without regard to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2), of such aggregate “parachute payments” as determined by the Company exceeds the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by the Company in accordance with the order of priority set forth below so Payment that such reduced amount will would result in no portion of the paymentsPayment being subject to the Excise Tax or (y) the largest portion, distributions up to and benefits being including the total, of the Payment, whichever amount, after taking into account all applicable U.S. federal, state, local, and other taxes and the Excise Tax (all computed at the highest applicable marginal rate), results in Employee’s receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. Such If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, distributions such reduction shall occur in the manner that results in the greatest economic benefit for Employee, as determined by the Firm (as defined below). If more than one method of reduction shall result in the same economic benefit, the items so reduced shall be reduced pro rata. If deemed necessary for compliance with Section 409A (as defined below), any reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and benefits then with respect to amounts that are such “deferred compensation.” To the extent any such payment is to be made over time (e.g., in installments), then the payments shall be reduced in reverse chronological order. Further, to the extent that any Payments are submitted to the Company’s stockholders for approval in accordance with U.S. Treasury Regulation Section 1.280G-1 Q&A 7, any reduction in, or waiver of, such Payments required by such vote will be reduced applied without any application of discretion by Employee and in the order prescribed by this Section 9. In no event shall the Company or any shareholder be liable to Employee for any amounts not paid as a result of the operation of this Section 9. (b) Unless the Company and Employee otherwise agree in writing, the Company will engage a nationally recognized firm of independent public accountants selected by the Company and to which Employee agrees, or such other person or entity to which the parties mutually agree (the “Firm”) to make any determinations required under this Section 9, which determinations will be made in accordance writing by the Firm. The Company and Employee will furnish to the Firm such information and documents as the Firm may reasonably request in order to make its determinations under this Section 9. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 9. For purposes of making the following order calculations required by this Section 9, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; Sections 280G and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order 4999 of the date of grant of the Participant’s Equity AwardsCode.

Code Section 280G. If the present value of all payments, distributions and benefits provided (i) Anything in this Agreement to the Participant contrary notwithstanding, in the event that it shall be determined that any payment, distribution, or other action by the Company to or for the Participant’s benefit of the Employee (whether paid or payable or distributed or distributable pursuant to the terms of this the Agreement or otherwise which constitute (each a “Payment”)), would result in an “excess parachute payment” when aggregated with other payments, distributions, and benefits which constitute “parachute payments,” exceed two hundred ninety-nine percent (299%) of the Participant’s “base amount,” then such payments, distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), whichever of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has within the meaning ascribed to it in of Section 280G(b)(2280G(b)(i) of the Code, without regard to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2), of such aggregate “parachute payments” as determined by the Company exceeds the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by the Company in accordance with the order of priority set forth below so but that such reduced amount will result in no portion of the paymentsPayments would be treated as excess parachute payments if the aggregate amount of the Payments were reduced by not more 10% of the aggregate present value of all of the Payments, distributions and benefits being subject then the Payments shall be reduced to the Excise Tax“Reduced Amount”. Such paymentsThe “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be an excess parachute payment under Section 280G(b)(i) of the Code. For purposes of this Section 7(e), distributions and benefits will present value shall be reduced by the Company determined in accordance with Section 280G(d)(4) of the Code. If applicable, Payments shall be reduced in the following order of priority order: (A) reduction any cash severance based on a multiple of cash paymentsBase Salary or Annual Bonus; (B) cancellation of accelerated vesting of Equity Awardsany other cash amounts payable to the Employee; (C) benefits valued as parachute payments; and (CD) reduction of employee benefits. If acceleration of vesting of Equity Award any equity awards. If and to the extent necessary to avoid a violation of Section 409A, no amounts payable under any “nonqualified deferred compensation is plan” subject to Section 409A shall be reduced until after all other Payments have been reduced. (ii) All determinations required to be reducedmade under this Section 7(e), such acceleration including the amount of vesting any Reduced Amount and the Payments that are to be reduced pursuant to Section 7(e)(i) and shall be cancelled in made by the reverse order Company’s accountants (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the date receipt of grant of notice from the ParticipantEmployee that there has been a Payment, or such earlier time as is requested by the Company. The Accounting Firm’s Equity Awards.decision as to which Payments are to be reduced shall be made in consultation with the Employee and shall be subject to the Employee’s consent, which shall not be unreasonably withheld. NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY [****] ARE SUBJECT TO A CONFIDENTIAL TREATMENT REQUEST, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. COMPLETE, UNREDACTED COPIES OF THIS EXHIBIT HAVE BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST

Code Section 280G. If a. In the present value of all payments, distributions and event that: (i) the aggregate payments or benefits provided to be made or afforded to the Participant Executive which are deemed to be “parachute payments” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or for any successor thereof, (the Participant’s benefit pursuant “Termination Benefits”) would be deemed to the terms of this Agreement or otherwise which constitute a include an “excess parachute payment” when aggregated with other payments, distributions, and benefits which constitute “parachute payments,” exceed two hundred ninety-nine percent (299%) under Section 280G of the ParticipantCode; and (ii) if (A) such Termination Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three times the Executive’s “base amount,” then as determined in accordance with Section 280G of the Code, and (B) the Non-Triggering Amount less the product of the marginal rate of any applicable state and federal income tax and the Non-Triggering Amount would be greater than the aggregate value of the Termination Benefits (without such payments, distributions and benefits shall either reduction) minus (a) the amount of tax required to be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to by the excise tax imposed Executive thereon by Section 4999 of the Code and further minus (b) the product of the Termination Benefits and the marginal rate of any applicable state and federal income tax, then (iii) the Termination Benefits shall be reduced to the Non-Triggering Amount. b. If it is determined that the Executive’s Termination Benefits shall be reduced pursuant to this Section 8(a), the Executive shall be entitled to designate the Termination Payments to be so reduced; provided that if the Executive fails to make such designation within five (5) business days after receipt of the notice from the Accounting Firm, as provided in Section 8(c) below, the Company may effect such reduction in any manner it deems appropriate. c. Any determination of whether there will be a limitation on payments to the Executive pursuant to Section 8(a) above shall be made by the nationally recognized certified public accounting firm used by the Company immediately prior to the Change of Control or, if such firm declines to serve, such other nationally recognized certified public accounting firm as may be designated by the Executive (the “Excise TaxAccounting Firm”), whichever which shall provide detailed supporting calculations both to the Company and the Executive not less than ten (10) business days prior to the Change of Control. All fees and expenses of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined Accounting Firm shall be borne solely by the Company. As used hereinAny determination by the Accounting Firm shall be binding upon the Company and the Executive. For purposes of making the calculations required by this Section 8, “parachute payment” has the meaning ascribed to it in Section 280G(b)(2) Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. d. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, without regard if successful, would result in a loss by the Company of any portion if its tax deduction for payments made by the Company to Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed Executive due to it in Code the application of Section 280G and of the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2)Code. e. Notwithstanding any other provision of this Section 8, of such aggregate “parachute payments” as determined by the Company exceeds may withhold and pay over to the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by Internal Revenue Service for the Company in accordance with benefit of the order of priority set forth below so that such reduced amount will result in no Executive all or any portion of the payments, distributions and benefits being subject to applicable taxes under Section 4999 of the Excise Tax. Such payments, distributions and benefits will Code that it determines in good faith that it is or may be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of future required to withhold, and the date of grant of the Participant’s Equity AwardsExecutive hereby consents to such withholding.