Common use of Parachute Provisions Clause in Contracts

Parachute Provisions. Notwithstanding any provisions of this Agreement to the contrary: (i) If any of the payments or benefits received or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company (all such payments and benefits, being hereinafter referred to as the “Total Payments”), would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Employee shall receive the Total Payments and be responsible for the Excise Tax; provided, however that the Employee shall not receive the Total Payments and the Total Payments shall be reduced to the Safe Harbor Amount (defined below) if (A) the net amount of such Total Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). The “Safe Harbor Amount” is the amount to which the Total Payments would hypothetically have to be reduced so that no portion of the Total Payments would be subject to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the accounting firm that was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Company. (iii) In the event it is determined that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.

Parachute Provisions. Notwithstanding any provisions of Payments under this Agreement shall be made without regard to whether the contrary: deductibility of such payments (i) If any of the payments or benefits received or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether pursuant to the terms of this Agreement or any other planpayments) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, arrangement or agreement with the Company as amended (all such payments and benefits, being hereinafter referred to as the “Total PaymentsCode”), and without regard to whether such payments would be subject the Employee to the federal excise tax (the levied on certain “Excise Tax”) imposed excess parachute payments” under Section 4999 of the Code, the Employee shall receive the Total Payments and be responsible for the Excise Tax; provided, however however, that the Employee shall not receive if the Total After-Tax Payments and (as defined below) would be increased by the Total Payments shall limitation or elimination of any amount payable under this Agreement, then the amount payable under this Agreement will be reduced to the Safe Harbor Amount (defined below) if (A) extent necessary to maximize the net amount of such Total After-Tax Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). The “Safe Harbor Amount” is the amount determination of whether and to which the Total Payments would hypothetically have what extent payments under this Agreement are required to be reduced so that no portion of in accordance with the Total Payments would be subject to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments preceding sentence will be subject to made by the Excise Tax and Company’s independent auditors. In the event of any underpayment or overpayment under this Agreement (as determined after the application of this Section 7), the amount of such Excise Taxunderpayment or overpayment will be immediately paid by the Company to the Employee or refunded by the Employee to the Company, (Aas the case may be, with interest at the applicable federal rate provided for in Section 7872(f)(2) all of the Code. For purposes of this Agreement, “Total Payments shall be treated as After-Tax Payments” means the total of all “parachute payments” (within the meaning of as that term is defined in Section 280G(b)(2) of the Code) unlessmade to or for the benefit of the Employee (whether made hereunder or otherwise), in the opinion of tax counsel after reduction for all applicable federal taxes (“Tax Counsel”) selected by the accounting firm that wasincluding, immediately prior to the Change in Controlwithout limitation, the Company’s independent auditor (the “Auditor”), such payments or benefits (tax described in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) 4999 of the Code). Notwithstanding the foregoing, (B) all “excess parachute payments” within if so requested by the meaning of Section 280G(b)(1) Employee, the Company shall use reasonable efforts to obtain the requisite approval by the stockholders of the Code shall be treated as subject to the Excise Tax unless, Company in the opinion manner contemplated by Q&A 7 of Tax CounselTreas. Reg. Section 1.280G, it being understood that the Company does not guarantee that such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall approval will be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Codeobtained. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Company. (iii) In the event it is determined determines that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on a pro rata basissuch approval has been obtained, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion such obligations of the Total Payments is subject to the Excise TaxQ&A 7 of Treas. Reg.

Parachute Provisions. Notwithstanding In the event the Company determines in good faith that any provisions of this Agreement to the contrary: (i) If any of the payments or benefits received (whether made or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether provided pursuant to the terms of this Agreement or any other planotherwise) provided to the Employee constitute “parachute payments” (“Parachute Payments”) within the meaning of Section 280G of the Internal Revenue Code of 1986, arrangement or agreement with the Company as amended (all such payments and benefits, being hereinafter referred to as the “Total PaymentsCode”), would ) and may be subject to an excise tax imposed pursuant to Section 4999 of the Code, the Parachute Payments will be reduced to an amount determined by the Company in good faith to be the maximum amount that may be provided to the Employee without resulting in any portion of such Parachute Payments being subject to such excise tax (the amount of such reduction, the “Excise TaxCutback Benefits”). The Employee shall be entitled to select which Parachute Payments (of those that are not considered to be deferred compensation under Section 409A of the Code) shall be reduced hereunder; provided that if the Employee fails to so select promptly, the Company shall select which Parachute Payments (of those that are not considered to be deferred compensation under Section 409A of the Code) will be reduced. Parachute Payments that are considered to be deferred compensation under Section 409A of the Code shall be reduced only to the extent that the complete reduction of the Parachute Payments in the preceding sentence is insufficient to eliminate the imposition of the excise tax imposed under Section 4999 of the Code. Notwithstanding the foregoing, if applicable to the Company at that time, the Company shall use reasonable efforts to obtain the approval of the Cutback Benefits by the Company’s stockholders in the manner contemplated by Q&A 7 of Treas. Reg. Section 1.280G, it being understood and agreed that the Company does not guarantee that such approval will be obtained. If, and only if, the Company determines that such approval is obtained, the Employee shall be entitled to receive the Total Payments and be responsible for the Excise Tax; provided, however that the Employee shall not receive the Total Payments and the Total Payments shall be reduced Cutback Benefits without regard to the Safe Harbor Amount (defined below) if (A) the net amount first sentence of such Total Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Paymentsthis Section 4(f). The “Safe Harbor Amount” is the amount to which the Total Payments would hypothetically have to be reduced so that no portion of the Total Payments would be subject to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the accounting firm that was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Company. (iii) In the event it is determined that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.

Parachute Provisions. Notwithstanding any provisions of this Agreement to the contrary: (i) If any of the payments or benefits received or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company (all such payments and benefits, being hereinafter referred to as the “Total Payments”), would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Employee shall receive the Total Payments and be responsible for the Excise Tax; provided, however that the Employee shall not receive the Total Payments and the Total Payments shall be reduced to the Safe Harbor Amount (defined below) if (A) the net amount of such Total Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). The “Safe Harbor Amount” is the amount to which the Total Payments would hypothetically have to be reduced so that no portion of the Total Payments would be subject to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the accounting firm that was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Company.) (iii) In the event it is determined that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.

Parachute Provisions. Notwithstanding any provisions of Anything in this Agreement to the contrary: (i) If contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the payments Executive (whether paid or benefits received payable or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether distributed or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company otherwise) (all such payments and benefits, being hereinafter referred to as the a “Total PaymentsPayment”), ) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, prior to the making of any Payment to Executive, a calculation shall be made comparing (i) imposed under Section 4999 the net benefit to the Executive of the Code, the Employee shall receive the Total Payments and be responsible for Payment after payment of the Excise Tax; provided, however that the Employee shall not receive the Total Payments and the Total Payments shall be reduced to the Safe Harbor Amount (defined below) if (Aii) the net amount of such Total Payments, as so reduced benefit to the Safe Harbor Amount (and after subtracting Executive if the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal Payment had been limited to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax extent necessary to which the Employee would be subject in respect of such unreduced Total Payments). The “Safe Harbor Amount” is the amount to which the Total Payments would hypothetically have to be reduced so that no portion of the Total Payments would be avoid being subject to the Excise Tax. . If the amount calculated under (i) above is less than the amount calculated under (ii) For purposes of determining whether any of above, then the Total Payments will Payment shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined below). For purposes of this Section 7.16, present value shall be determined in accordance with Section 280G(d)(4) of the Tax Code. For purposes of this Section 7.16, the “Parachute Value” of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Tax Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. The determination of whether an Excise Tax would be imposed, the amount of such Excise Tax, (A) all and the calculation of the Total Payments amounts referred to in this Section 7.16 above shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unlessmade by an independent, in the opinion of tax counsel (“Tax Counsel”) selected by the nationally recognized accounting firm that was, immediately prior or compensation consulting firm mutually acceptable to the Change in Control, Company and the Company’s independent auditor Executive (the “AuditorDetermination Firm”), such payments or benefits () which shall provide detailed supporting calculations. Any determination by the Determination Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in whole or in part) do not constitute parachute payments, including by reason the application of Section 280G(b)(4)(A) 4999 of the Code, (B) all “excess parachute payments” within Tax Code at the meaning of Section 280G(b)(1) time of the Code shall be treated as subject initial determination by the Determination Firm hereunder, it is possible that Payments which the Executive was entitled to, but did not receive pursuant to this Section 7.16, could have been made without the imposition of the Excise Tax unless(“Underpayment”). In such event, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within Determination Firm shall determine the meaning of Section 280G(b)(4)(B) amount of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to Underpayment that has occurred and any such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit Underpayment shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be promptly paid by the Company. (iii) Company to or for the benefit of the Executive but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. In the event it is determined that the Safe Harbor Amount is payable to EmployeeTax Code Sections 280G and 4999 or any successor provisions are repealed without succession, then the severance payments provided under this Agreement that are cash Section 7.16 shall first be reduced on a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that of no portion of the Total Payments is subject to the Excise Taxfurther force or effect.

Parachute Provisions. Notwithstanding In the event the Company determines in good faith that any provisions of this Agreement to the contrary: (i) If any of the payments or benefits received (whether made or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether provided pursuant to the terms of this Agreement or any other planotherwise) provided to the Employee constitute “parachute payments” (“Parachute Payments”) within the meaning of Section 280G of the Internal Revenue Code of 1986, arrangement or agreement with the Company as amended (all such payments and benefits, being hereinafter referred to as the “Total PaymentsCode”), would ) and may be subject to an excise tax imposed pursuant to Section 4999 of the Code, the Parachute Payments will be reduced to an amount determined by the Company in good faith to be the maximum amount that may be provided to the Employee without resulting in any portion of such Parachute Payments being subject to such excise tax (the amount of such reduction, the “Excise TaxCutback Benefits”). The Employee shall be entitled to select which Parachute Payments (of those that are not considered to be deferred compensation under Section 409A of the Code) shall be reduced hereunder; provided that if the Employee fails to so select promptly, the Company shall select which Parachute Payments (of those that are not considered to be deferred compensation under Section 409A of the Code) will be reduced. Parachute Payments that are considered to be deferred compensation under Section 409A of the Code shall be reduced only to the extent that the complete reduction of the Parachute Payments in the preceding sentence is insufficient to eliminate the imposition of the excise tax imposed under Section 4999 of the Code. Notwithstanding the foregoing, the Company shall use reasonable efforts to obtain the approval of the Cutback Benefits by the Company’s stockholders in the manner contemplated by Q&A 7 of Treas. Reg. Section 1.280G, it being understood and agreed that the Company does not guarantee that such approval will be obtained. If, and only if, the Company determines that such approval is obtained, the Employee shall be entitled to receive the Total Payments and be responsible for the Excise Tax; provided, however that the Employee shall not receive the Total Payments and the Total Payments shall be reduced Cutback Benefits without regard to the Safe Harbor Amount (defined below) if (A) the net amount first sentence of such Total Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Paymentsthis Section 4(f). The “Safe Harbor Amount” is the amount to which the Total Payments would hypothetically have to be reduced so that no portion of the Total Payments would be subject to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the accounting firm that was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Company. (iii) In the event it is determined that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.

Parachute Provisions. Notwithstanding any provisions of Payments under this Agreement shall be made without regard to whether the contrary: deductibility of such payments (i) If any of the payments or benefits received or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether pursuant to the terms of this Agreement or any other planpayments) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, arrangement or agreement with the Company as amended (all such payments and benefits, being hereinafter referred to as the “Total PaymentsCode”), and without regard to whether such payments would be subject the Employee to the federal excise tax (the levied on certain “Excise Tax”) imposed excess parachute payments” under Section 4999 of the Code, the Employee shall receive the Total Payments and be responsible for the Excise Tax; provided, however however, that the Employee shall not receive if the Total After-Tax Payments and (as defined below) would be increased by the Total Payments shall limitation or elimination of any amount payable under this Agreement, then the amount payable under this Agreement will be reduced to the Safe Harbor Amount (defined below) if (A) extent necessary to maximize the net amount of such Total After-Tax Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). The “Safe Harbor Amount” is the amount determination of whether and to which the Total Payments would hypothetically have what extent payments under this Agreement are required to be reduced so that no portion of in accordance with the Total Payments would be subject to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments preceding sentence will be subject to made by the Excise Tax and Company’s independent auditors. In the event of any underpayment or overpayment under this Agreement (as determined after the application of this Section 8), the amount of such Excise Taxunderpayment or overpayment will be immediately paid by the Company to the Employee or refunded by the Employee to the Company, (Aas the case may be, with interest at the applicable federal rate provided for in Section 7872(f)(2) all of the Code. For purposes of this Agreement, “Total Payments shall be treated as After-Tax Payments” means the total of all “parachute payments” (within the meaning of as that term is defined in Section 280G(b)(2) of the Code) unlessmade to or for the benefit of the Employee (whether made hereunder or otherwise), in the opinion of tax counsel after reduction for all applicable federal taxes (“Tax Counsel”) selected by the accounting firm that wasincluding, immediately prior to the Change in Controlwithout limitation, the Company’s independent auditor (the “Auditor”), such payments or benefits (tax described in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) 4999 of the Code). Notwithstanding the foregoing, (B) all “excess parachute payments” within if so requested by the meaning of Section 280G(b)(1) Employee, the Company shall use reasonable efforts to obtain the requisite approval by the stockholders of the Code shall be treated as subject to the Excise Tax unless, Company in the opinion manner contemplated by Q&A 7 of Tax CounselTreas. Reg. Section 1.280G, it being understood that the Company does not guarantee that such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall approval will be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Codeobtained. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Company. (iii) In the event it is determined determines that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on a pro rata basissuch approval has been obtained, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion such obligations of the Total Payments is subject to the Excise TaxQ&A 7 of Treas. Reg.

Parachute Provisions. Notwithstanding In the event the Company determines in good faith that any provisions of this Agreement to the contrary: (i) If any of the payments or benefits received (whether made or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether provided pursuant to the terms of this Agreement or any other planotherwise) provided to the Employee constitute “parachute payments” (“Parachute Payments”) within the meaning of Section 280G of the Internal Revenue Code of 1986, arrangement or agreement with the Company as amended (all such payments and benefits, being hereinafter referred to as the “Total PaymentsCode”), would ) and may be subject to an excise tax imposed pursuant to Section 4999 of the Code, the Parachute Payments will be reduced to an amount determined by the Company in good faith to be the maximum amount that may be provided to the Employee without resulting in any portion of such Parachute Payments being subject to such excise tax (the amount of such reduction, the “Excise TaxCutback Benefits”). The Employee shall be entitled to select which Parachute Payments (of those that are not considered to be deferred compensation under Section 409A of the Code) shall be reduced hereunder; provided that if the Employee fails to so select promptly, the Company shall select which Parachute Payments (of those that are not considered to be deferred compensation under Section 409A of the Code) will be reduced. Parachute Payments that are considered to be deferred compensation under Section 409A of the Code shall be reduced only to the extent that the complete reduction of the Parachute Payments in the preceding sentence is insufficient to eliminate the imposition of the excise tax imposed under Section 4999 of the Code. Notwithstanding the foregoing, the Company shall use reasonable efforts to obtain the approval of the Cutback Benefits by the Company’s stockholders in the manner contemplated by Q&A 7 of Treas. Reg. Section 1.280G, it being understood and agreed that the Company does not guarantee that such approval will be obtained. If, and only if, the Company determines that such approval is obtained, the Employee shall be entitled to receive the Total Payments and be responsible for the Excise Tax; provided, however that the Employee shall not receive the Total Payments and the Total Payments shall be reduced Cutback Benefits without regard to the Safe Harbor Amount (defined below) if (A) the net amount first sentence of such Total Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Paymentsthis Section 4(h). The “Safe Harbor Amount” is the amount to which the Total Payments would hypothetically have to be reduced so that no portion of the Total Payments would be subject to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the accounting firm that was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Company. (iii) In the event it is determined that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.

Parachute Provisions. Notwithstanding any provisions of Payments under this Agreement shall be made without regard to whether the contrary: deductibility of such payments (i) If any of the payments or benefits received or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether pursuant to the terms of this Agreement or any other planpayments) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, arrangement or agreement with the Company as amended (all such payments and benefits, being hereinafter referred to as the “Total PaymentsCode”), and without regard to whether such payments would be subject the Employee to the federal excise tax (the levied on certain “Excise Tax”) imposed excess parachute payments” under Section 4999 of the Code, the Employee shall receive the Total Payments and be responsible for the Excise Tax; provided, however however, that the Employee shall not receive if the Total After-Tax Payments and (as defined below) would be increased by the Total Payments shall limitation or elimination of any amount payable under this Agreement, then the amount payable under this Agreement will be reduced to the Safe Harbor Amount (defined below) if (A) extent necessary to maximize the net amount of such Total After-Tax Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). The “Safe Harbor Amount” is the amount determination of whether and to which the Total Payments would hypothetically have what extent payments under this Agreement are required to be reduced so that no portion of in accordance with the Total Payments would be subject to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments preceding sentence will be subject to made by the Excise Tax and Company’s independent auditors. In the event of any underpayment or overpayment under this Agreement (as determined after the application of this Section 7), the amount of such Excise Taxunderpayment or overpayment will be immediately paid by the Company to the Employee or refunded by the Employee to the Company, (Aas the case may be, with interest at the applicable federal rate provided for in Section 7872(f)(2) all of the Code. For purposes of this Agreement, “Total Payments shall be treated as After-Tax Payments” means the total of all “parachute payments” (within the meaning of as that term is defined in Section 280G(b)(2) of the Code) unlessmade to or for the benefit of the Employee (whether made hereunder or otherwise), in the opinion of tax counsel after reduction for all applicable federal taxes (“Tax Counsel”) selected by the accounting firm that wasincluding, immediately prior to the Change in Controlwithout limitation, the Company’s independent auditor (the “Auditor”), such payments or benefits (tax described in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) 4999 of the Code). Notwithstanding the foregoing, (B) all “excess parachute payments” within if so requested by the meaning of Section 280G(b)(1) Employee, the Company shall use reasonable efforts to obtain the requisite approval by the stockholders of the Code shall be treated as subject to the Excise Tax unless, Company in the opinion manner contemplated by Q&A 7 of Tax CounselTreas. Reg. Section 1.280G, it being understood that the Company does not guarantee that such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall approval will be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Codeobtained. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Company. (iii) In the event it is determined determines that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.such approval has been

Parachute Provisions. Notwithstanding any provisions of this Agreement to In the contrary: (i) If any of the payments or benefits received or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with event the Company (all such payments and benefits, being hereinafter referred to as the “Total Payments”), would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Employee shall receive the Total Payments and be responsible for the Excise Tax; provided, however determines in good faith that the Employee shall not receive the Total Payments and the Total Payments shall be reduced to the Safe Harbor Amount (defined below) if (A) the net amount of such Total Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). The “Safe Harbor Amount” is the amount to which the Total Payments would hypothetically have to be reduced so that no portion of the Total Payments would be subject to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the accounting firm that was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole whether made or in partprovided pursuant to this Agreement or otherwise) do not provided to the Executive constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) all “excess parachute payments” within the meaning of Section 280G(b)(1280G of the Code (“Parachute Payments”) and may be subject to an excise tax imposed pursuant to Section 4999 of the Code, the Parachute Payments will be reduced to an amount determined by the Company in good faith to be the maximum amount that may be provided to the Executive without resulting in any portion of such Parachute Payments being subject to such excise tax (the amount of such reduction, the “Cutback Benefits”). The Executive shall be entitled to select which Parachute Payments (of those that are not considered to be deferred compensation under Section 409A of the Code) shall be reduced hereunder; provided that if the Executive fails to so select promptly, the Company shall select which Parachute Payments (of those that are not considered to be deferred compensation under Section 409A of the Code) will be reduced. Parachute Payments that are considered to be deferred compensation under Section 409A of the Code shall be treated as subject reduced only to the Excise Tax unless, extent that the complete reduction of the Parachute Payments in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within preceding sentence is insufficient to eliminate the meaning of Section 280G(b)(4)(B) imposition of the Code) in excess of the base amount (within the meaning of excise tax imposed under Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) 4999 of the Code. If Notwithstanding the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunderforegoing, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses use reasonable efforts to obtain the approval of Tax Counsel and the Auditor shall be paid Cutback Benefits by the Company. (iii) In ’s stockholders in the event manner contemplated by Q&A 7 of Treas. Reg. Section 1.280G, it is determined being understood and agreed that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement Company does not guarantee that are cash shall first such approval will be reduced on a pro rata basisobtained. If, and only if, the non-cash severance payments Company determines that such approval is obtained, the Executive shall thereafter be reduced on a pro rata basis, entitled to receive the Cutback Benefits without regard to the extent necessary so that no portion first sentence of the Total Payments is subject to the Excise Taxthis Section 4f.

Parachute Provisions. Notwithstanding If any provisions of amount payable to or other benefit receivable by the Executive pursuant to this Agreement is deemed to the contrary: constitute a Parachute Payment (ias defined below in this Section 7.16) If alone or when added to any of the payments other amount payable or benefits received paid to or to be other benefit receivable or received by the Employee in connection with the Employee’s termination of employment in respect of Executive which is deemed to constitute a Change in Control, Parachute Payment (whether pursuant to the terms of this Agreement or any other not under an existing plan, arrangement or agreement with the Company (all such payments and benefits, being hereinafter referred to as the “Total Payments”other agreement), and would be subject to result in the imposition on the Executive of an excise tax (the “Excise Tax”) imposed under Section 4999 of the CodeInternal Revenue Code of 1986, as amended (“Section 4999”), then, in addition to any other benefits to which the Executive is entitled under this Agreement, the Employee shall receive the Total Payments and be responsible for the Excise Tax; provided, however that the Employee shall not receive the Total Payments and the Total Payments Executive shall be reduced paid by the Company an amount in cash equal to the Safe Harbor Amount sum of the excise taxes payable by the Executive by reason of receiving Parachute Payments plus the amount necessary to put the Executive in the same after-tax position (defined below) if (A) the net amount of such Total Payments, as so reduced to the Safe Harbor Amount (taking into account any and after subtracting the net amount of all applicable federal, state and local excise, income or other taxes at the highest applicable rates on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Parachute Payments and on any payments under this Section 7.16 ) as if no excise taxes had been imposed with respect to Parachute Payments (the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments“Gross-Up Payment”). The Notwithstanding the foregoing, if the Parachute Payment does not exceed 110% of three (3) times the Executive’s “Safe Harbor Amountbase amount” is as defined within Section 280G of the amount to which Internal Revenue Code of 1986, as amended, then the Total Payments would hypothetically have to Company will not pay the Gross-Up Payment, and the payments due under this Agreement shall be reduced so that no portion of the Total Parachute Payments would not result in the imposition of an excise tax under Section 4999. The amount of any payment under this Section 7.16 shall be subject computed by a certified public accounting firm mutually and reasonably acceptable to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax Executive and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the accounting firm that was, immediately prior to the Change in ControlCompany, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and computation expenses of Tax Counsel and the Auditor which shall be paid by the Company. (iii) In the event it is determined that the Safe Harbor Amount is payable . “Parachute Payment” shall mean any payment deemed to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on constitute a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.“parachute payment” as defined in Section 280G.

Parachute Provisions. Notwithstanding any provisions of this Agreement to the contrary:: ​ (i) If any of the payments or benefits received or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company (all such payments and benefits, being hereinafter referred to as the “Total Payments”), would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Employee shall receive the Total Payments and be responsible for the Excise Tax; provided, however that the Employee shall not receive the Total Payments and the Total Payments shall be reduced to the Safe Harbor Amount (defined below) if (A) the net amount of such Total Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). The “Safe Harbor Amount” is the amount to which the Total Payments would hypothetically have to be reduced so that no portion of the Total Payments would be subject to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the accounting firm that was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) ​ ​ ​ ​ represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Company. (iii) In the event it is determined that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.and

Parachute Provisions. Notwithstanding any provisions of this Agreement to the contrary: (i) If any of the payments or benefits received or to be received by the Employee in connection with the Employee’s termination of employment in respect of a Change in Control, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company (all such payments and benefits, being hereinafter referred to as the “Total Payments”), would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Employee shall receive the Total Payments and be responsible for the Excise Tax; provided, however that the Employee shall not receive the Total Payments and the Total Payments shall be reduced to the Safe Harbor Amount (defined below) if (A) the net amount of such Total Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). The “Safe Harbor Amount” is the amount to which the Total Payments would hypothetically have to be reduced so that no portion of the Total Payments would be subject to the Excise Tax. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the accounting firm that was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, then a different auditor, acceptable to both the Company and Employee, shall be selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Company.and (iii) In the event it is determined that the Safe Harbor Amount is payable to Employee, then the severance payments provided under this Agreement that are cash shall first be reduced on a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.