Common use of Code Section 280G Clause in Contracts

Code Section 280G. So long as the Company is described in Section 280G(b)(5)(A)(ii)(I) of the Code, in the event that any payment that is either received by the Executive or paid by the Company on the Executive’s behalf or any property, or any other benefit provided to the Executive under the Agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively the “Company Payments”), would be subject to the tax imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority) (the “Excise Tax”), the Company shall, with respect to such Company Payments, use its reasonable best efforts to obtain a vote satisfying the requirements of Section 280G(b)(5) of the Code, such that no portion of the Company Payments will be subject to such Excise Tax. In the event that a vote satisfying the requirements of Section 280G(b)(5) of the Code is not obtained for any reason, then the Executive will be entitled to receive a portion of the Company Payments having a value equal to $1 less than three (3) times the Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code). Any reduction of the Company Payments pursuant to the foregoing shall occur in the following order: (i) any cash severance payable by reference to the Executive’s base salary or annual bonus; (ii) any other cash amount payable to the Executive; (iii) any benefit valued as a “parachute payment;” and (iv) acceleration of vesting of any equity award.

Code Section 280G. So long as (a) Notwithstanding anything in this Agreement to the Company is described in Section 280G(b)(5)(A)(ii)(I) contrary, on or after the date of the CodeCompany’s initial public offering, in the event that Executive becomes entitled to receive or receives any payment that is either received by the Executive or paid by the Company on the Executive’s behalf or any property, or any other benefit provided to the Executive under the this Agreement or under any other plan, agreement or arrangement or agreement with the Company Company, any person whose actions result in a Change in Control or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if all such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively payments and benefits being referred to herein as the “Company Total Payments”), would ) and it is determined that any of the Total Payments will be subject to the any excise tax imposed by pursuant to Code Section 4999 of the Code (and 4999, or any similar tax that may hereafter be imposed by any taxing authority) or successor provision (the “Excise Tax”), the Company shall, with respect shall pay to such Company Executive either (1) the full amount of the Total Payments or (2) an amount equal to the Total Payments, use its reasonable best efforts reduced by the minimum amount necessary to obtain a vote satisfying the requirements of Section 280G(b)(5) of the Code, such that no prevent any portion of the Company Total Payments will from being an “excess parachute payment” (within the meaning of Code Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by Executive, on an after-tax basis, of the greatest amount of Total Payments notwithstanding that all or some portion of the Total Payments may be subject to such the Excise Tax. In For purposes of determining whether Executive would receive a greater after-tax benefit from the event that a vote satisfying the requirements of Section 280G(b)(5) Capped Payments than from receipt of the Code is not obtained for any reason, then the Executive will be entitled to receive a portion full amount of the Company Payments having a value equal Total Payments, (i) there shall be taken into account any Excise Tax and all applicable federal, state and local taxes required to $1 less than three be paid by Executive in respect of the receipt of such payments and (3ii) times such payments shall be deemed to be subject to federal income taxes at the highest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the effective date of the Change in Control occurs, and state and local income taxes at the highest rate of taxation applicable to individuals in the state and locality of Executive’s “base amount” residence on the effective date of the Change in Control, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes (as determined by assuming that such term deduction is defined in subject to the maximum limitation applicable to itemized deductions under Code Section 280G(b)(3)(A) 68 and any other limitations applicable to the deduction of state and local income taxes under the Code). Any reduction of the Company Payments pursuant to the foregoing shall occur in the following order: (i) any cash severance payable by reference to the Executive’s base salary or annual bonus; (ii) any other cash amount payable to the Executive; (iii) any benefit valued as a “parachute payment;” and (iv) acceleration of vesting of any equity award.

Code Section 280G. So long as (a) Notwithstanding anything in this Agreement to the Company is described in Section 280G(b)(5)(A)(ii)(I) of the Codecontrary, in the event that Executive becomes entitled to receive or receives any payment that is either received by the Executive or paid by the Company on the Executive’s behalf or any property, or any other benefit provided to the Executive under the this Agreement or under any other plan, agreement or arrangement or agreement with the Company Company, any person whose actions result in a Change in Control or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if all such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively payments and benefits being referred to herein as the “Company Total Payments”), would ) and it is determined that any of the Total Payments will be subject to the any excise tax imposed by pursuant to Code Section 4999 of the Code (and 4999, or any similar tax that may hereafter be imposed by any taxing authority) or successor provision (the “Excise Tax”), the Company shall, with respect shall pay to such Company Executive either (1) the full amount of the Total Payments or (2) an amount equal to the Total Payments, use its reasonable best efforts reduced by the minimum amount necessary to obtain a vote satisfying the requirements of Section 280G(b)(5) of the Code, such that no prevent any portion of the Company Total Payments will from being an “excess parachute payment” (within the meaning of Code Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by Executive, on an after-tax basis, of the greatest amount of Total Payments notwithstanding that all or some portion of the Total Payments may be subject to such the Excise Tax. In For purposes of determining whether Executive would receive a greater after-tax benefit from the event that a vote satisfying the requirements of Section 280G(b)(5) Capped Payments than from receipt of the Code is not obtained for any reason, then the Executive will be entitled to receive a portion full amount of the Company Payments having a value equal Total Payments, (i) there shall be taken into account any Excise Tax and all applicable federal, state and local taxes required to $1 less than three be paid by Executive in respect of the receipt of such payments and (3ii) times such payments shall be deemed to be subject to federal income taxes at the highest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the effective date of the Change in Control occurs, and state and local income taxes at the highest rate of taxation applicable to individuals in the state and locality of Executive’s “base amount” residence on the effective date of the Change in Control, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes (as determined by assuming that such term deduction is defined in subject to the maximum limitation applicable to itemized deductions under Code Section 280G(b)(3)(A) 68 and any other limitations applicable to the deduction of state and local income taxes under the Code). Any reduction of the Company Payments pursuant to the foregoing shall occur in the following order: (i) any cash severance payable by reference to the Executive’s base salary or annual bonus; (ii) any other cash amount payable to the Executive; (iii) any benefit valued as a “parachute payment;” and (iv) acceleration of vesting of any equity award.

Code Section 280G. So long as (a) Notwithstanding anything in this Agreement to the Company is described in Section 280G(b)(5)(A)(ii)(I) of the Codecontrary, in the event that Executive becomes entitled to receive or receives any payment that is either received by the Executive or paid by the Company on the Executive’s behalf or any property, or any other benefit provided to the Executive under the this Agreement or under any other plan, agreement or arrangement or agreement with the Company Company, or from any person whose actions result in a Change of Control or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if all such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively payments and benefits being referred to herein as the “Company Total Payments”), would ) and it is determined that any of the Total Payments will be subject to the any excise tax imposed by pursuant to Code Section 4999 of the Code (and 4999, or any similar tax that may hereafter be imposed by any taxing authority) or successor provision (the “Excise Tax”), the Company shall, with respect shall pay to such Company Executive either (1) the full amount of the Total Payments or (2) an amount equal to the Total Payments, use its reasonable best efforts reduced by the minimum amount necessary to obtain a vote satisfying the requirements of Section 280G(b)(5) of the Code, such that no prevent any portion of the Company Total Payments will from being an “excess parachute payment” (within the meaning of Code Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by Executive, on an after-tax basis, of the greatest amount of Total Payments notwithstanding that all or some portion of the Total Payments may be subject to such the Excise Tax. In For purposes of determining whether Executive would receive a greater after-tax benefit from the event that a vote satisfying the requirements of Section 280G(b)(5) Capped Payments than from receipt of the Code is not obtained for any reason, then the Executive will be entitled to receive a portion full amount of the Company Payments having a value equal Total Payments, (i) there shall be taken into account any Excise Tax and all applicable federal, state and local taxes required to $1 less than three be paid by Executive in respect of the receipt of such payments and (3ii) times such payments shall be deemed to be subject to federal income taxes at the highest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the effective date of the Change of Control occurs, and state and local income taxes at the highest rate of taxation applicable to individuals in the state and locality of Executive’s “base amount” residence on the effective date of the Change of Control, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (as determined by assuming that such term deduction is defined in subject to the maximum limitation applicable to itemized deductions under Code Section 280G(b)(3)(A) 68 and any other limitations applicable to the deduction of state and local income taxes under the Code). Any reduction of the Company Payments pursuant to the foregoing shall occur in the following order: (i) any cash severance payable by reference to the Executive’s base salary or annual bonus; (ii) any other cash amount payable to the Executive; (iii) any benefit valued as a “parachute payment;” and (iv) acceleration of vesting of any equity award.

Code Section 280G. So long as the Company is described in Section 280G(b)(5)(A)(ii)(I(a) Notwithstanding any other provision of the Codethis Agreement, in the event that Employee becomes entitled to receive or receives any payment that is either received by payments, options, awards or benefits (including, without limitation, the Executive monetary value of any non-cash benefits and the accelerated vesting of stock options or paid by the Company on the Executive’s behalf or any property, or any other benefit provided to the Executive restricted stock) under the this Agreement or under any other plan, agreement or arrangement or agreement with the Company or Company, from any other person whose payments or benefits are treated as contingent on actions result in any change described in Code Section 280G(b)(2)(A)(i) (a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company“Section 280G Transaction”) or from any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively collectively, the “Company Payments”) that may separately or in the aggregate constitute “parachute payments” within the meaning of Code Section 280G and it is determined that, but for this Section 10(a), would any of the Payments will be subject to the any excise tax imposed by pursuant to Code Section 4999 of the Code (and or any similar tax that may hereafter be imposed by any taxing authority) or successor provision (the “Excise Tax”), the Company shall, with respect shall pay to such Company Payments, use its reasonable best efforts to obtain a vote satisfying Employee either (i) the requirements of Section 280G(b)(5) of the Code, such that no portion full amount of the Company Payments will (as defined below) or (ii) an amount equal to the Company Payments (as defined below), reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Code Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by Employee, on an after-tax basis, of the greatest amount of Payments notwithstanding that all or some portion of the Payments may be subject to such the Excise Tax. In the event that For purposes of determining whether Employee would receive a vote satisfying the requirements of Section 280G(b)(5) greater after-tax benefit from receipt of the Code is not obtained for any reason, then the Executive will be entitled to receive a portion Capped Payments than from receipt of the Company Payments having a value equal full amount of the Payments, (i) there shall be taken into account any Excise Tax and all applicable federal, state and local taxes required to $1 less than three be paid by Employee in respect of the receipt of such payments and (3ii) times such payments shall be deemed to be subject to federal income taxes at the Executivehighest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the benefits are to be paid, and state and local income taxes at the highest rate of taxation applicable to individuals in the state and locality of Employee’s “base amount” residence on the effective date of the Section 280G Transaction, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (as determined by assuming that such term deduction is defined in subject to the maximum limitation applicable to itemized deductions under Code Section 280G(b)(3)(A) 68 and any other limitations applicable to the deduction of state and local income taxes under the Code). Any reduction of the Company Payments pursuant to the foregoing shall occur in the following order: (i) any cash severance payable by reference to the Executive’s base salary or annual bonus; (ii) any other cash amount payable to the Executive; (iii) any benefit valued as a “parachute payment;” and (iv) acceleration of vesting of any equity award.

Code Section 280G. So long as the Company is described in Section 280G(b)(5)(A)(ii)(I) of the Code, in the event that any payment that is either received by the Executive or paid by the Company on the Executive’s behalf or any property, or a. Notwithstanding any other benefit provided to the Executive under the provision of this Agreement or under any other plan, arrangement or agreement with to the Company or any other person whose payments or benefits are treated as contingent on contrary (including the Equity Incentive Plan), if there is a change of ownership or effective control of the Company (or change in the ownership of a substantial portion of the assets of a corporation (within the Companymeaning of Section 280G of the Code) and any payment or any person affiliated with benefit (including payments and benefits pursuant to this Agreement) that the Executive would receive from the Company or such person otherwise (but only if such payment or other benefit is in connection with “Transaction Payment”) would (i) constitute a “parachute payment” within the Executive’s employment by meaning of Section 280G of the Company) Internal Revenue Code of 1986 (collectively the “Company PaymentsCode”), would and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority) (the “Excise Tax”), then the Company shallshall cause to be determined, with respect to such Company Payments, use its reasonable best efforts to obtain a vote satisfying the requirements of Section 280G(b)(5) before any amounts of the CodeTransaction Payment are paid to the Executive, such which of the following two alternative forms of payment would result in the Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that no all or some portion of the Company Payments will Transaction Payment may be subject to such the Excise Tax. In the event that a vote satisfying the requirements of Section 280G(b)(5: (1) payment in full of the Code is not obtained for any reasonentire amount of the Transaction Payment (a “Full Payment”), then or (2) payment of only a part of the Transaction Payment so that the Executive will be entitled to receive a portion receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company Payments having a value equal shall cause to $1 less than three be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (3) times all computed at the Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) highest applicable marginal rate, net of the Codemaximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). Any If a Reduced Payment is made, the reduction of the Company Payments pursuant to the foregoing shall in payments and/or benefits will occur in the following order: (i1) any first, reduction of cash severance payable by reference payments, in reverse order of scheduled payment date (or if necessary, to zero), (2) then, reduction of non-cash and non-equity benefits provided to the Executive’s base salary , on a pro rata basis (or annual bonus; (ii) any other cash amount payable if necessary, to the Executive; (iii) any benefit valued as a “parachute payment;” zero), and (iv3) then, cancellation of the acceleration of vesting of any equity awardaward compensation in the reverse order of the date of grant of the Executive’s equity awards.

Code Section 280G. So long as (a) Notwithstanding anything in this Agreement to the Company is described in Section 280G(b)(5)(A)(ii)(I) of the Codecontrary, in the event that Executive becomes entitled to receive or receives any payment that is either received by the Executive or paid by the Company on the Executive’s behalf or any property, or any other benefit provided to the Executive under the this Agreement or under any other plan, agreement or arrangement or agreement with the Company or Company, any other person whose payments or benefits are treated as contingent on actions result in a change Change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) Control or any person affiliated with the Company or such person (but only if all such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively payments and benefits being referred to herein as the “Company Total Payments”), would ) and it is determined that any of the Total Payments will be subject to the any excise tax imposed by pursuant to Code Section 4999 of the Code (and 4999, or any similar tax that may hereafter be imposed by any taxing authority) or successor provision (the “Excise Tax”), the Company shall, with respect shall pay to such Company Executive either (i) the full amount of the Total Payments or (ii) an amount equal to the Total Payments, use its reasonable best efforts reduced by the minimum amount necessary to obtain a vote satisfying the requirements of Section 280G(b)(5) of the Code, such that no prevent any portion of the Company Total Payments will from being an “excess parachute payment” (within the meaning of Code Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by Executive, on an after-tax basis, of the greatest amount of Total Payments notwithstanding that all or some portion of the Total Payments may be subject to such the Excise Tax. In For purposes of determining whether Executive would receive a greater after-tax benefit from the event that a vote satisfying the requirements of Section 280G(b)(5) Capped Payments than from receipt of the Code is not obtained for any reason, then the Executive will be entitled to receive a portion full amount of the Company Payments having a value equal Total Payments, (i) there shall be taken into account any Excise Tax and all applicable federal, state and local taxes required to $1 less than three be paid by Executive in respect of the receipt of such payments and (3ii) times such payments shall be deemed to be subject to federal income taxes at the highest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the effective date of the Change in Control occurs, and state and local income taxes at the highest rate of taxation applicable to individuals in the state and locality of Executive’s “base amount” residence on the effective date of the Change in Control, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (as determined by assuming that such term deduction is defined in subject to the maximum limitation applicable to itemized deductions under Code Section 280G(b)(3)(A) 68 and any other limitations applicable to the deduction of state and local income taxes under the Code). Any reduction of the Company Payments pursuant to the foregoing shall occur in the following order: (i) any cash severance payable by reference to the Executive’s base salary or annual bonus; (ii) any other cash amount payable to the Executive; (iii) any benefit valued as a “parachute payment;” and (iv) acceleration of vesting of any equity award.

Code Section 280G. So long as (a) If the Company is described severance and other benefits provided for in this Agreement or otherwise payable to Employee (a “Payment”) would (1) constitute a “parachute payment” within the meaning of Section 280G(b)(5)(A)(ii)(I) 280G of the CodeInternal Revenue Code of 1986, in as amended, and the event that any payment that is either received by the Executive or paid by the Company on the Executive’s behalf or any property, or any other benefit provided to the Executive under the Agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company rules and regulations promulgated thereunder (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively the “Company PaymentsCode”), would and (2) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority) (the “Excise Tax”), then such Payment shall be equal to the Company shall, with respect to such Company Payments, use its reasonable best efforts to obtain a vote satisfying Reduced Amount. The “Reduced Amount” shall be either (i) the requirements of Section 280G(b)(5) largest portion of the Code, such Payment that would result in no portion of the Company Payments will Payment being subject to the Excise Tax or (ii) the largest portion, up to and 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 such the Excise Tax. In If a reduction in payments or benefits constituting “parachute payments” is necessary so that the event that a vote satisfying Payment equals the requirements of Section 280G(b)(5) of the Code is not obtained for any reasonReduced Amount, then the Executive will be entitled to receive a portion of the Company Payments having a value equal to $1 less than three (3) times the Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code). Any reduction of the Company Payments pursuant to the foregoing shall occur in the following 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 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: (i) any cash severance payable by reference . Further, to the Executive’s base salary or annual bonus; (ii) extent that any other cash amount payable Payments are submitted to the Executive; (iii) Company’s stockholders for approval in accordance with U.S. Treasury Regulation Section 1.280G-1 Q&A 7, any benefit valued reduction in, or waiver of, such Payments required by such vote will be 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 “parachute payment;” and (iv) acceleration result of vesting the operation of any equity awardthis Section 10.

Code Section 280G. So long as the Company is described Notwithstanding any other provision in Section 280G(b)(5)(A)(ii)(I) of the Codethis Agreement or any Employment Agreement, in the event that any payment that it is either received determined (by the Executive or paid reasonable computation of an independent nationally recognized certified public accounting firm that shall be selected by the Company on (the Executive’s behalf or any property, or any other benefit provided to “Accountant”) that the Executive under the Agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control aggregate amount of the Company (payments, distributions, benefits and entitlements of any type payable by the Employer to or in for the ownership of a substantial portion benefit of the assets Employee (including any payment, distribution, benefit or entitlement made by any person or entity effecting a “change in control” within the meaning of Section 280G of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively the “Company Payments”Code), would in each case, that could be subject to considered “parachute payments” within the tax imposed by meaning of Section 4999 280G of the Code (and such payments, the “Parachute Payments”) that, but for this paragraph (and, if applicable, the provisions of any Employment Agreement that relate to Section 280G of the Code) would be payable to the Employee, exceeds the greatest amount of Parachute Payments that could be paid to the Employee without giving rise to any liability for any excise tax imposed by Code Section 4999 (or any successor provision thereto) or any similar tax that may hereafter be imposed by state or local law, or any taxing authority) interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, collectively referred to as the “Excise Tax”), then the Company shallaggregate amount of Parachute Payments payable to the Employee shall not exceed the amount which produces the greatest after-tax benefit to the Employee after taking into account any Excise Tax to be payable by the Employee. For the avoidance of doubt, this provision shall reduce the amount of Parachute Payments otherwise payable to the Employee, if doing so would place the Employee in a more favorable net after-tax economic position as compared with not reducing the amount of Parachute Payments (taking into account the Excise Tax payable in respect to of such Company Parachute Payments). Any such reduction shall be applied (i) first against cash payments which are included in full as Parachute Payments, use its reasonable best efforts to obtain a vote satisfying the requirements of (ii) second from equity awards which are included in full as Parachute Payments, (iii) third from cash payments which are partially included as Parachute Payments and (iv) fourth from equity awards that are partially included as Parachute Payments, in each instance provided that Section 280G(b)(5) of the Code, such that no portion of the Company Payments will be subject to such Excise Tax. In the event that a vote satisfying the requirements of Section 280G(b)(5) 409A of the Code is not obtained for any reason, then complied with and the Executive will payments to be entitled made later in time are to receive a portion of the Company Payments having a value equal be reduced before payments to $1 less than three (3) times the Executive’s “base amount” (as such term is defined be made sooner in Section 280G(b)(3)(A) of the Code). Any reduction of the Company Payments pursuant to the foregoing shall occur in the following order: (i) any cash severance payable by reference to the Executive’s base salary or annual bonus; (ii) any other cash amount payable to the Executive; (iii) any benefit valued as a “parachute payment;” and (iv) acceleration of vesting of any equity awardtime.

Code Section 280G. So long as (a) Notwithstanding anything in this Agreement to the Company is described in Section 280G(b)(5)(A)(ii)(I) of the Codecontrary, in the event that Employee becomes entitled to receive or receives any payment that is either received by the Executive or paid by the Company on the Executive’s behalf or any property, or any other benefit provided to the Executive under the this Agreement or under any other plan, agreement or arrangement or agreement with the Company Company, any person whose actions result in a Change of Control or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if all such payment or other benefit payments and benefits being referred to herein as the "Total Payments") and it is in connection with the Executive’s employment by the Company) (collectively the “Company Payments”), would be subject to the tax imposed by Section 4999 determined that any of the Code (and any similar tax that may hereafter be imposed by any taxing authority) (the “Excise Tax”), the Company shall, with respect to such Company Payments, use its reasonable best efforts to obtain a vote satisfying the requirements of Section 280G(b)(5) of the Code, such that no portion of the Company Total Payments will be subject to such any excise tax pursuant to Code Section 4999 or any similar or successor provision (the "Excise Tax"), the Company shall pay to Employee either (i) the full amount of the Total Payments or (ii) an amount equal to the Total Payments, reduced by the minimum amount necessary to prevent any portion of the Total Payments from being an "excess parachute payment" (within the meaning of Code Section 280G) (the "Capped Payments"), whichever of the foregoing amounts results in the receipt by Employee, on an after-tax basis, of the greatest amount of Total Payments notwithstanding that all or some portion of the Total Payments may be subject to the Excise Tax. In For purposes of determining whether Employee would receive a greater after-tax benefit from the event that a vote satisfying the requirements of Section 280G(b)(5) Capped Payments than from receipt of the Code is not obtained for any reason, then the Executive will be entitled to receive a portion full amount of the Company Payments having a value equal Total Payments, (A) there shall be taken into account any Excise Tax and all applicable federal, state and local taxes required to $1 less than three be paid by Employee in respect of the receipt of such payments and (3B) times such payments shall be deemed to be subject to federal income taxes at the Executive’s “base amount” highest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the effective date of the Change of Control occurs, and state and local income taxes at the highest rate of taxation applicable to individuals in the state and locality of Employee's residence on the effective date of the Change of Control, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (as determined by assuming that such term deduction is defined in subject -- 23525-0001/LEGAL22099915.8 to the maximum limitation applicable to itemized deductions under Code Section 280G(b)(3)(A) 68 and any other limitations applicable to the deduction of state and local income taxes under the Code). Any reduction of the Company Payments pursuant to the foregoing shall occur in the following order: (i) any cash severance payable by reference to the Executive’s base salary or annual bonus; (ii) any other cash amount payable to the Executive; (iii) any benefit valued as a “parachute payment;” and (iv) acceleration of vesting of any equity award.

Code Section 280G. So long as If any payment or benefit Employee would receive from the Company is described in Company, Parent, any member of the Parent Group, any other affiliate of the Company, any acquirer of the Company, and/or pursuant to this Agreement, but determined without regard to any additional payment required under this section, (collectively, the “280G Payment”) would (x) constitute a “parachute payment” within the meaning of Section 280G(b)(5)(A)(ii)(I) 280G of the Code, in the event that any payment that is either received by the Executive or paid by the Company on the Executive’s behalf or any property, or any other benefit provided to the Executive under the Agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company and (or in the ownership of a substantial portion of the assets of the Companyy) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively the “Company Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and any similar tax that may hereafter be imposed by any taxing authority) (penalties, are hereinafter collectively referred to as the “280G Excise Tax”), then such 280G Payments shall be either (a) the full amount of such 280G Payments or (b) such lesser amount (with cash payments being reduced first) as would result in no portion of the 280G Payments being subject to the 280G Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes and the 280G Excise Tax, results in Employee’s receipt, on an after-tax basis, of the greater amount of the 280G Payments notwithstanding that all or some portion of the 280G Payments may be subject to the 280G Excise Tax. The accounting firm engaged by the Company shallfor general audit purposes as of the day prior to the effective date of the change of control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is also serving as accountant or auditor for the individual, entity or group which will control the Company upon the occurrence of a change of control, the Company shall appoint a nationally recognized accounting firm other than the accounting firm engaged by the Company for general audit purposes to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The Company shall request that the accounting firm engaged to make the determinations hereunder provide its calculations, together with detailed supporting documentation, to the Company and Employee within thirty (30) days after the date on which such accounting firm has been engaged to make such determinations or such other time as requested by the Company or Employee. If the accounting firm determines that no 280G Excise Tax is payable with respect to a 280G Payment, the Company shall request that it furnish the Company and Employee with an opinion reasonably acceptable to Employee that no 280G Excise Tax will be imposed with respect to such Company Payments, use its reasonable best efforts to obtain a vote satisfying the requirements of Section 280G(b)(5) 280G Payment. Any good faith determinations of the Codeaccounting firm made hereunder shall be final, such that no portion of binding, and conclusive upon the Company Payments will be subject to such and Employee. Notwithstanding the foregoing, if the Internal Revenue Service determines that 280G Excise Tax. In the event that a vote satisfying the requirements of Section 280G(b)(5) of the Code is not obtained for any reasonTaxes are owed, then the Executive will be entitled to receive a portion of the Company Payments having a value equal shall promptly pay the 280G Tax Restoration Payment to $1 less than three (3) times the Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code). Any reduction of the Company Payments pursuant to the foregoing shall occur in the following order: (i) any cash severance payable by reference to the Executive’s base salary or annual bonus; (ii) any other cash amount payable to the Executive; (iii) any benefit valued as a “parachute payment;” and (iv) acceleration of vesting of any equity awardEmployee.