Common use of Section 280G Matters Clause in Contracts

Section 280G Matters. If the benefits described in Sections 1 and 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.

Section 280G Matters. If (a) To the benefits described in Sections 1 and 2 herein, extent that (x) any “disqualified individual” (as applicable, such term is defined for purposes of Section 280G of the Code) (the "Severance Payment"a “Disqualified Individual”) would otherwise be entitled to any payment or benefit as a result of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional or subsequent events) and (y) such payment or benefit could reasonably be expected to constitute a “parachute payment payment” under Section 280G of the Internal Revenue Code of 1986Code, as amended (the "Code")Company shall, and but for this Section would be subject prior to the excise tax imposed Closing: (i) use its reasonable best efforts to obtain a binding written waiver by such Disqualified Individual (each, an “Parachute Waiver”) of any portion of such parachute payment as exceeds 2.99 times such individual’s “base amount” within the meaning of Section 4999 280G(b)(3) of the Code (collectively, the “Excess Payments”) to the extent such Excess Payments are not subsequently approved pursuant to a stockholder vote in accordance with the requirements of Section 280G(b)(5)(B) of the Code (the "Excise Tax"“280G Approval Requirements”), Executive shall either: (i) pay the Excise Tax, or ; (ii) have seek stockholder approval in a manner intended to satisfy the benefits reduced to such lesser extent as would result 280G Approval Requirements in no portion of such benefits being subject to the Excise Tax, whichever respect of the foregoing amounts, taking into account Excess Payments payable to all such Disqualified Individuals; and (iii) provide all disclosure to all Persons entitled to vote under Section 280G(b)(5)(B)(ii) of the applicable federal, state Code and local income taxes and the Excise Tax, results hold a vote of stockholders in the receipt by Executive on an after-tax basismanner intended to satisfy the 280G Approval Requirements. (b) The Company shall provide the Parachute Waivers, disclosure to all Persons entitled to vote under Section 280G(b)(5)(B)(ii) of the greatest amount Code and any other resolutions, notices or other documents issued, distributed, adopted or executed in connection with the implementation of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity 7.07 to which the parties mutually agree (the "Accountants")Tuatara for its prior review and comment, whose determination will be conclusive and binding upon Executive and the Company for all purposesshall consider in good faith any reasonable comments made by Tuatara. (c) To the extent any Excess Payments with respect to which any Parachute Waiver is obtained are not approved as contemplated above, such Excess Payments shall not be made or provided. For purposes of making Prior to the calculations required by this Section 5Closing Date, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning Company shall deliver to Tuatara written evidence of satisfaction of the application of Sections 280G and 4999 Approval Requirements or written notice of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsnon-satisfaction thereof.

Section 280G Matters. If any of the benefits described in Sections 1 and 2 herein, as applicable, payable (the "Severance “CIC Payment"”) under this Agreement would otherwise constitute a parachute payment payments under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section 6(d) would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) receive the full amount of such benefits and pay the Excise Tax, or (ii) have the benefits reduced solely to such lesser the extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 6(d) will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 56(d), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 56(d). Any reduction in payments and/or benefits required by this Section 5 6(d) shall occur in the following order: : (1i) severance payments otherwise due under Section 5(a); (ii) health/welfare benefits otherwise due under Section 6(a); (iii) retirement benefits due under Section 6(b); and (iv) benefits otherwise due under Section 6(c). To the extent that a reduction is made to a portion of cash payments; any payment or benefit described in paragraphs (2i) through (iv) that is to be made or provided over a period of time, any reduction shall be made in the reverse order of vesting acceleration the time or period over which such payment or benefit is to be made or provided. If after the reductions provided for in paragraphs (i) through (iv) additional reductions in CIC Payments are required to avoid the imposition of equity awards; and (3) reduction of other benefits paid to Executive. In the event that Excise Tax, then the acceleration of vesting of equity awards is to be reduced, such acceleration of vesting otherwise provided for under Section 2(b) shall be cancelled cancelled; provided, that such cancellation shall occur in the reverse order of the date of grant for Executive's equity awardsof such awards and solely to the extent necessary to avoid the imposition of the Excise Tax. Notwithstanding any provision to the contrary, reductions specified in this Section 6(d) shall not be made with respect to any amounts payable or benefits provided under this Agreement to the extent such amounts or benefits do not constitute a CIC Payment that could result in the imposition of the Excise Tax.”

Section 280G Matters. If the benefits described in Sections 1 and Section 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; and (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.

Section 280G Matters. If The parties hereto acknowledge and agree that in consideration of the benefits described provided under this letter agreement and for other good and valuable consideration, Section 8 of the Transition and Succession Agreement is hereby amended and restated in Sections 1 its entirety as follows: “Notwithstanding any other provision of this Agreement or any other plan, program, arrangement, agreement or policy with or maintained by any of the Affiliated Companies: (a) In the event it is determined by an independent nationally recognized public accounting firm, which is engaged and 2 herein, paid for by the Company prior to the consummation of any transaction constituting a Change of Control (which for purposes of this Section 8 shall mean a change in ownership or control as applicable, (determined in accordance with the "Severance Payment") would otherwise constitute a parachute payment regulations promulgated under Section 280G of the Internal Revenue Code Code), which accounting firm shall in no event be the accounting firm for the entity seeking to effectuate the Change of 1986, as amended Control (the "Code"“Accountant”), and but for this Section would which determination shall be subject certified by the Accountant, that part or all of the consideration, compensation or benefits to be paid to the excise tax imposed Executive under this Agreement or under any other plan, program, arrangement, agreement or policy with or maintained by any of the Affiliated Companies constitute “parachute payments” under Section 280G(b)(2) of the Code, then, if the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to the Executive under any other plan, arrangement or agreement which constitute “parachute payments” (collectively, the “Parachute Amount”) exceeds the maximum amount that would not give rise to any liability under Section 4999 of the Code, the amounts constituting “parachute payments” which would otherwise be payable to the Executive or for his benefit shall be reduced to the maximum amount that would not give rise to any liability under Section 4999 of the Code (the "Excise Tax"“Reduced Amount”); provided that such amounts shall not be so reduced if the Accountant determines that without such reduction the Executive would be entitled to receive and retain, Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an a net after-tax basisbasis (including, of the greatest amount of benefitswithout limitation, notwithstanding that all or some portion of such benefits may be taxable any excise taxes payable under Section 4999 of the Code), an amount which is greater than the amount, on a net after-tax basis, that the Executive would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Executive otherwise agree in writing, any determination required In connection with making determinations under this Section 5 will 8(a), the Accountant shall take into account any positions to mitigate any excise taxes payable under Section 4999 of the Code, such as the value of any reasonable compensation for services to be made in writing by a national "Big Four" accounting firm selected rendered by the Company Executive before or such other person or entity after the Change of Control, including any amounts payable to which the parties mutually agree (Executive following the "Accountants")Executive’s Termination of Employment with respect to any non-competition provisions that may apply to the Executive, whose determination will be conclusive and binding upon Executive and the Company shall cooperate in the valuation of any such services, including any non-competition provisions. (b) If the determination made pursuant to Section 8(a) results in a reduction of the payments that would otherwise be paid to the Executive except for all purposes. For purposes the application of making the calculations required by this Section 58(a), the Accountants Company shall promptly give the Executive notice of such determination. Such reduction in payments shall be first applied to reduce any cash payments that the Executive would otherwise be entitled to receive (whether pursuant to this Agreement or otherwise) and shall thereafter be applied to reduce other payments and benefits, in each case, in reverse order beginning with the payments or benefits that are to be paid the furthest in time from the date of such determination, unless, to the extent permitted by Section 409A of the Code, the Executive elects to have the reduction in payments applied in a different order; provided that, in no event may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning such payments be reduced in a manner that would result in subjecting the Executive to additional taxation under Section 409A of the Code. (c) As a result of the uncertainty in the application of Sections 280G and 4999 of the Code. The Company and Code at the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make time of a determination hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the Executive’s benefit pursuant to this Agreement or under any other plan, program, arrangement, agreement or policy with or maintained by any of the Affiliated Companies which should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for the Executive’s benefit pursuant to this Section. The Company shall bear all costs Agreement or under any other plan, program, arrangement, agreement or policy with or maintained by any of the Accountants may reasonably incur Affiliated Companies could have been so paid or distributed (each, an “Underpayment”), in connection each case, consistent with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction calculation of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executivethe Reduced Amount hereunder. In the event that acceleration the Accountant, based upon the assertion of vesting a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountant believes has a high probability of equity awards is success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to be reduced, such acceleration of vesting or for the Executive’s benefit shall be cancelled repaid by the Executive to the Company together with interest at the applicable federal rate provided for in the reverse order Section 7872(f)(2)(A) of the date Code; provided, however, that no such repayment shall be required if and to the extent such deemed repayment would not either reduce the amount on which the Executive is subject to tax under Sections 1 and 4999 of grant the Code or generate a refund of such taxes. In the event that the Accountant, based on controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the Executive's equity awards’s benefit together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.”

Section 280G Matters. If requested, no less than fifteen (15) Business Days prior to the Closing Date by Purchaser in good faith, based upon calculations prepared in good faith by the Company’s advisors (which calculations shall be provided to Purchaser as soon as reasonably practicable following the date of this Agreement), the Company shall (a) use its reasonable best efforts (provided that doing so will not require any payment to any “disqualified individual”) to obtain from each “disqualified individual” (within the meaning of Section 280G(c) of the Code and the regulations thereunder) who could otherwise receive payments and/or benefits described that would separately or in Sections 1 the aggregate constitute “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code on account of the transaction contemplated in this Agreement (“Parachute Payments”), a written waiver that shall provide that, if the requisite stockholder approval under Section 280G(b)(5)(B) of the Code and 2 hereinthe regulations thereunder is not obtained, as applicableno Parachute Payments with respect to such disqualified individual, (in the "Severance Payment") absence of such stockholder approval, shall be payable to or retained by such disqualified individual to the extent that such Parachute Payments would otherwise constitute a parachute payment under not be deductible by reason of the application of Section 280G of the Internal Revenue Code or would result in the imposition of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by under Section 4999 of the Code on such disqualified individual; and (b) submit to the "Excise Tax")stockholders of the Company for approval, Executive shall either: (iin a manner and form that complies with the stockholder approval procedures set forth in Section 280G(b)(5)(B) pay of the Excise Tax, Code and the regulations thereunder any payments and/or benefits that may separately or (ii) have in the benefits reduced to such lesser extent as would result aggregate constitute Parachute Payments in no portion the absence of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Codestockholder approval. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected All materials produced by the Company or such other person or entity in connection with the implementation of this Section 6.16 shall be provided to which the parties mutually agree (the "Accountants")Purchaser in advance for Purchaser’s review and comment, whose determination will be conclusive and binding upon Executive and the Company for all purposesshall consider any of Purchaser’s requested changes or comments in good faith and not unreasonably omit them. For purposes of making the calculations required by The parties acknowledge that this Section 56.16 shall not apply to any Purchaser Agreements that are not provided to the Company at least ten (10) days prior to Closing so that, for the avoidance of doubt, compliance with this Section 6.16 shall be determined as if such Purchaser Agreements had not been entered into. The Purchaser acknowledges that the Company cannot compel any “disqualified individual” to waive any existing rights under a contract or agreement with the Company or any Subsidiary and, provided that the Company has used its reasonable best efforts to obtain waivers from such “disqualified individuals” pursuant to Section 6.16(a), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur not be deemed in connection with any calculations contemplated by breach of this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid 6.16 if any such disqualified person refuses to Executive. In the event that acceleration of vesting of equity awards is to be reduced, waive any such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsright.

Section 280G Matters. If Notwithstanding any other provision of this Agreement, (a) In the benefits described event it is determined by an independent nationally recognized public accounting firm, which is engaged and paid for by the Company or its parent prior to the consummation of any transaction constituting a Change of Control (which for purposes of this Section 8 shall mean a change in Sections 1 and 2 herein, ownership or control as applicable, (determined in accordance with the "Severance Payment") would otherwise constitute a parachute payment regulations promulgated under Section 280G of the Internal Revenue Code Code), which accounting firm shall in no event be the accounting firm for the entity seeking to effectuate the Change of 1986, as amended Control (the "Code"“Accountant”), which determination shall be certified by the Accountant and but for this Section would be subject set forth in a certificate delivered to the excise tax imposed by Executive not less than ten business days prior to the Change of Control setting forth in reasonable detail the basis of the Accountant’s calculations (including any assumptions that the Accountant made in performing the calculations), that part or all of the consideration, compensation or benefits to be paid to the Executive under this Agreement constitute “parachute payments” under Section 280G(b)(2) of the Code, then, if the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to the Executive under any other plan, arrangement or agreement which constitute “parachute payments” (collectively, the “Parachute Amount”) exceeds the maximum amount that would not give rise to any liability under Section 4999 of the Code, the amounts constituting “parachute payments” which would otherwise be payable to the Executive or for his benefit shall be reduced to the maximum amount that would not give rise to any liability under Section 4999 of the Code (the "Excise Tax"“Reduced Amount”); provided that such amounts shall not be so reduced if the Accountant determines that without such reduction the Executive would be entitled to receive and retain, Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an a net after-tax basisbasis (including, of the greatest amount of benefitswithout limitation, notwithstanding that all or some portion of such benefits may be taxable any excise taxes payable under Section 4999 of the Code), an amount which is greater than the amount, on a net after-tax basis, that the Executive would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Executive otherwise agree in writing, any determination required In connection with making determinations under this Section 5 will 8, the Accountant shall take into account any positions to mitigate any excise taxes payable under Section 4999 of the Code, such as the value of any reasonable compensation for services to be made in writing by a national "Big Four" accounting firm selected rendered by the Company Executive before or such other person or entity after the Change of Control, including any amounts payable to which the parties mutually agree (Executive following the "Accountants")Executive’s termination of employment hereunder with respect to any non-competition provisions that may apply to the Executive, whose determination will be conclusive and binding upon Executive and the Company shall cooperate in the valuation of any such services, including any non-competition provisions. (b) If the determination made pursuant to Section 8(a) results in a reduction of the payments that would otherwise be paid to the Executive except for all purposes. For purposes the application of making the calculations required by this Section 58(a), the Accountants Company shall promptly give the Executive notice of such determination. Such reduction in payments shall be first applied to reduce any cash payments that the Executive would otherwise be entitled to receive (whether pursuant to this Agreement or otherwise) and shall thereafter be applied to reduce other payments and benefits, in each case, in reverse order beginning with the payments or benefits that are to be paid the furthest in time from the date of such determination, unless, to the extent permitted by Section 409A of the Code, the Executive elects to have the reduction in payments applied in a different order; provided that, in no event may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning such payments be reduced in a manner that would result in subjecting the Executive to additional taxation under Section 409A of the Code. (c) As a result of the uncertainty in the application of Sections 280G and 4999 of the Code. The Company and Code at the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make time of a determination under hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the Executive’s benefit pursuant to this Section. The Agreement which should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Company shall bear all costs to or for the Accountants may reasonably incur Executive’s benefit pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”), in connection each case, consistent with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction calculation of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executivethe Reduced Amount hereunder. In the event that acceleration the Accountant, based upon the assertion of vesting a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountant believes has a high probability of equity awards is success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to be reduced, such acceleration of vesting or for the Executive’s benefit shall be cancelled repaid by the Executive to the Company together with interest at the applicable federal rate provided for in the reverse order Section 7872(f)(2)(A) of the date Code; provided, however, that no such repayment shall be required if and to the extent such deemed repayment would not either reduce the amount on which the Executive is subject to tax under Sections 1 and 4999 of grant the Code or generate a refund of such taxes. In the event that the Accountant, based on controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the Executive's equity awards’s benefit together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Section 280G Matters. If the benefits described in Sections 1 and or 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree Company's independent public accountants (the "Accountants"), whose determination will shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsSection.

Section 280G Matters. If In the event that any payment, accelerated vesting or other benefit payable to Executive under this Agreement together with any other benefits described in Sections 1 and 2 herein, as applicable, (received by Executive under any other Agreement would constitute “parachute payments” within the "Severance Payment") would otherwise constitute a parachute payment under meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”) (“Parachute Payments”), the following rules shall apply: If at such time the Company is not an entity whose stock is readily tradable on an established securities market (and but the Company is otherwise eligible to use the exception in Section 280G(b)(5)(A)(ii)) and if the Executive agrees to waive the right to receive and/or repay any Parachute Payment as required by applicable regulations under Section 280G(b)(5) of the Code (a “280G Waiver”), the Company shall seek to obtain stockholder approval in accordance with the terms of Section 280G(b)(5)(A)(ii) and the regulations thereunder. If at such time either Section 280G(b)(5)(A) is not available for this Section would the Company or the Executive does not provide a 280G Waiver, then Executive will be entitled to receive either (i) the full amount of the Parachute Payments, or (ii) the maximum amount that may be provided to Executive without resulting in any portion of such Parachute Payments being subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax")Code, Executive shall either: whichever of clauses (i) pay the Excise Tax, or and (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax), whichever of the foregoing amounts, after taking into account the applicable federal, state state, and local income taxes and the Excise Taxexcise tax under Section 4999 of the Code, results in the receipt by Executive Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such the Parachute Payments. The repayment and/or reduction of payments or benefits may which would be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by Parachute Payments (each a national "Big Four" accounting firm selected “Payment”) contemplated by the Company or such other person or entity to which preceding sentence shall be implemented by determining the parties mutually agree Parachute Payment Ratio (as defined below) for each Payment and then reducing the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request Payments in order to make a determination under this Section. The Company shall bear all costs beginning with the Accountants may reasonably incur in connection Payments with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.highest Parachute

Section 280G Matters. If (a) Prior to the benefits described Closing Date, but in Sections 1 and 2 hereinno event later than five (5) days prior to the Closing Date, the Company shall (i) request from each individual who is, or could reasonably be expected to be as applicableof the Closing, a “disqualified individual” (the "Severance Payment") would otherwise constitute a parachute payment under as such term is defined for purposes of Section 280G of the Internal Revenue Code) (each, a “Disqualified Individual”) of the Company or any of its Subsidiaries who has a right to any payment and/or benefit as a result of the transactions contemplated by this Agreement (not taking into account any arrangements entered into at the direction of Buyer unless such arrangements are provided to the Company at least ten Business Days prior to Closing) that would, or could reasonably be expected to, constitute a “parachute payment” (as defined in Section 280G(c) of the Code) an irrevocable waiver of such Disqualified Individual's rights to the portion of such parachute payment that exceeds (x) three times such individual's “base amount” within the meaning of Section 280G(b)(3) of the Code less (y) one dollar (collectively, the “Excess Parachute Payments”) unless such Excess Parachute Payments are not subsequently approved pursuant to a stockholder vote in accordance with the requirements of 1986, as amended Section 280G(b)(5)(B) of the Code and Treasury Regulations § 1.280G-1 thereunder (the "Code"“280G Stockholder Approval Requirements”); and (ii) seek stockholder approval in a manner intended to satisfy the 280G Stockholder Approval Requirements in respect of the Excess Parachute Payments payable to any such Disqualified Individual. (b) Prior to delivery to the stockholders and Disqualified Individuals of documents in connection with the stockholder approval contemplated under Section 6.05(a), the Company shall provide the Buyer and but for its counsel (i) its Section 280G calculations, including the assumptions used to make the calculations and (ii) a reasonable opportunity to review such information and provide comment on such documents to be delivered to the stockholders and Disqualified Individuals in connection with the stockholder vote, and the Company agrees to accept or address in good faith all reasonable comments that are timely provided by Buyer. Prior to the Closing, the Company shall deliver to the Buyer evidence that (A) a stockholder vote was solicited in accordance with this Section would be 6.05 and the requisite stockholder approval was obtained with respect to any Excess Parachute Payments that were subject to the excise tax imposed by Section 4999 of the Code stockholder vote (the "Excise Tax"“280G Approval”), Executive shall either: (i) pay the Excise Tax, or (iiB) have the benefits reduced to 280G Approval was not obtained and, as a consequence, that such lesser extent as would result in no portion of such benefits being subject Excess Parachute Payments shall not be made or provided, pursuant to the Excise Tax, whichever waivers of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding those Excess Parachute Payments that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected were executed by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsaffected Disqualified Individuals.

Section 280G Matters. If the benefits described in Sections 1 and 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; and (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.

Section 280G Matters. If In the event that any payments, accelerated vesting or other benefits described payable to Executive under this Agreement or otherwise, calculated in Sections 1 and 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under manner consistent with Section 280G of the Internal Revenue Code, would constitute "parachute payments" within the meaning of Section 280G of the Code of 1986, as amended (the "Code"“Parachute Payments”), and but for this Section the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($1.00) less than the amount that would cause the Parachute Payments to be subject to the excise tax imposed by under Section 4999 of the Code (the "“Excise Tax"”), Executive ; provided that the Parachute Payments shall either: (i) pay the Excise Tax, or (ii) have the benefits only be reduced to such lesser the extent as the after-tax value of amounts received by Executive after application of the above reduction would result in no portion exceed the after-tax value of the amounts received without application of such benefits being subject to the Excise Taxreduction, whichever of the foregoing amounts, after taking into account the applicable federal, state state, and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by If a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or or benefits required by this Section 5 constituting Parachute Payments is necessary, reduction shall occur in the following order, and in all events such reduction shall occur in accordance with the requirements of Section 409A of the Code: (1i) reduction of cash payments; (2ii) cancellation of accelerated vesting of equity or equity- linked awards; (iii) reduction of employee benefits. Payments, accelerated vesting acceleration of equity awards; or benefits shall be reduced or cancelled (as applicable), such reduction or cancellation shall occur in reverse chronological order with the payments to be paid furthest in the future being reduced first and (3) reduction of other benefits paid to Executive. In the event that with acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be being cancelled in the reverse order of the date of grant for grant. Notwithstanding anything to the contrary set forth herein, Executive may not elect the order in which the reduction in Executive's equity awards’s Parachute Payments will occur, and no such reduction or elimination shall apply, to the extent that such election accelerates or defers the timing of a payment or benefit in a manner that causes the payment or benefit to be subject to the additional tax pursuant to Section 409A of the Code. Any determinations and calculations required under this Section 5(k) shall be made by an independent public accounting firm engaged by the Company. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Executive and the Company no later than fifteen (15) calendar days after the date on which Executive’s right to a Parachute Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Company.

Section 280G Matters. If In the event that any payment that is either received by Executive or paid by the Employer on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with the Employer or any other person whose payments or benefits described in Sections 1 and 2 herein, are treated as applicable, (the "Severance Payment") would otherwise constitute contingent on a parachute payment under Section 280G change of ownership or control of the Internal Revenue Code Employer (or in the ownership of 1986, as amended a substantial portion of the assets of the Employer) or any person affiliated with the Employer or such person (but only if such payment or other benefit is in connection with Executive’s employment by the "Code"Employer) (collectively the “Employer Payments”), and but for this Section would will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Employer Payments, or (ii) a portion of the Employer Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b) (3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxCode, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodeEmployer Payments. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which independent public accountant of the parties mutually agree Employer (the "“Accountants"”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposespurposes upon the Employer and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and If there is a reduction of the Executive shall furnish Employer Payments pursuant to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any 11, such reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1A) reduction of any cash payments; severance payable by reference to the Executive’s Base Salary or Annual Bonus, (2B) reduction of vesting acceleration of equity awards; any other cash amount payable to Executive, (C) any employee benefit valued as a “parachute payment,” and (3D) reduction of other benefits paid to Executive. In the event that acceleration of vesting of any outstanding equity awards is to be reducedaward. For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Employer Payments are made to Executive after the application of the date cutback in this Section 11, which additional Employer Payments result in the cutback no longer being applicable, the Employer shall pay Executive an additional amount equal to the value of grant for Executive's equity awardsthe Employer Payments that were originally cutback. The Employer shall determine at the end of each calendar year whether any such restoration is necessary based on additional Employer Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days of the last day of such calendar year. In no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Employer Payments by reason of the application of Section 280G or Section 4999 of the Code.

Section 280G Matters. If In the event that any payment that is either received by Executive or paid by the Employer on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with the Employer or any other person whose payments or benefits described in Sections 1 and 2 herein, are treated as applicable, (the "Severance Payment") would otherwise constitute contingent on a parachute payment under Section 280G change of ownership or control of the Internal Revenue Code Employer (or in the ownership of 1986, as amended a substantial portion of the assets of the Employer) or any person affiliated with the Employer or such person (but only if such payment or other benefit is in connection with Executive’s employment by the "Code"Employer) (collectively the “Employer Payments”), and but for this Section would will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Employer Payments, or (ii) a portion of the Employer Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxCode, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodeEmployer Payments. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which independent public accountant of the parties mutually agree Employer (the "“Accountants"”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposespurposes upon the Employer and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and If there is a reduction of the Executive shall furnish Employer Payments pursuant to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any 11, such reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1A) reduction of any cash payments; severance payable by reference to the Executive’s Base Salary or Annual Bonus, (2B) reduction of vesting acceleration of equity awards; any other cash amount payable to Executive, (C) any employee benefit valued as a “parachute payment,” and (3D) reduction of other benefits paid to Executive. In the event that acceleration of vesting of any outstanding equity awards is to be reducedaward. For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Employer Payments are made to Executive after the application of the date cutback in this Section 11, which additional Employer Payments result in the cutback no longer being applicable, the Employer shall pay Executive an additional amount equal to the value of grant for Executive's equity awardsthe Employer Payments that were originally cutback. The Employer shall determine at the end of each calendar year whether any such restoration is necessary based on additional Employer Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days of the last day of such calendar year. In no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Employer Payments by reason of the application of Section 280G or Section 4999 of the Code.

Section 280G Matters. If Notwithstanding any other provision of this Agreement or any other plan, program, arrangement, agreement or policy with or maintained by any of the benefits described Affiliated Companies: (i) In the event it is determined by a mutually agreed independent nationally recognized public accounting firm, which is engaged and paid for by the Company prior to the consummation of any transaction constituting a Change of Control (which for purposes of this Section 8(i) shall mean a change in Sections 1 and 2 herein, ownership or control as applicable, (determined in accordance with the "Severance Payment") would otherwise constitute a parachute payment regulations promulgated under Section 280G of the Internal Revenue Code Code), which accounting firm shall in no event be the accounting firm for the entity seeking to effectuate the Change of 1986, as amended Control (the "Code"“Accountant”), which determination shall be certified by the Accountant and but for this Section would be subject set forth in a certificate delivered to the excise tax imposed by Executive not less than ten (10) business days prior to the Change of Control setting forth in reasonable detail the basis of the Accountant’s calculations (including any assumptions that the Accountant made in performing the calculations), that part or all of the consideration, compensation or benefits to be paid to the Executive under this Agreement constitute “parachute payments” under Section 280G(b)(2) of the Code, then, if the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to the Executive under any other plan, arrangement or agreement which constitute “parachute payments” (collectively, the “Parachute Amount”) exceeds the maximum amount that would not give rise to any liability under Section 4999 of the Code, the amounts constituting “parachute payments” which would otherwise be payable to the Executive or for his benefit shall be reduced to the maximum amount that would not give rise to any liability under Section 4999 of the Code (the "Excise Tax"“Reduced Amount”); provided that such amounts shall not be so reduced if the Accountant determines that without such reduction the Executive would be entitled to receive and retain, Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an a net after-tax basisbasis (including, of the greatest amount of benefitswithout limitation, notwithstanding that all or some portion of such benefits may be taxable any excise taxes payable under Section 4999 of the Code), an amount which is greater than the amount, on a net after-tax basis, that the Executive would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Executive otherwise agree in writing, any determination required In connection with making determinations under this Section 5 will 8(i), the Accountant shall take into account any positions to mitigate any excise taxes payable under Section 4999 of the Code, such as the value of any reasonable compensation for services to be made in writing by a national "Big Four" accounting firm selected rendered by the Company Executive before or such other person or entity after the Change of Control, including any amounts payable to which the parties mutually agree (Executive following the "Accountants")Executive’s Termination of Employment with respect to any non-competition provisions that may apply to the Executive, whose determination will be conclusive and binding upon Executive and the Company shall cooperate in the valuation of any such services, including any non-competition provisions. (ii) If the determination made pursuant to Section 8(i)(i) results in a reduction of the payments that would otherwise be paid to the Executive except for all purposes. For purposes the application of making the calculations required by this Section 58(i)(i), the Accountants Company shall promptly give the Executive notice of such determination. Such reduction in payments shall be first applied to reduce any cash payments that the Executive would otherwise be entitled to receive (whether pursuant to this Agreement or otherwise) and shall thereafter be applied to reduce other payments and benefits, in each case, in reverse order beginning with the payments or benefits that are to be paid the furthest in time from the date of such determination, unless, to the extent permitted by Section 409A of the Code, the Executive elects to have the reduction in payments applied in a different order; provided that, in no event may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning such payments be reduced in a manner that would result in subjecting the Executive to additional taxation under Section 409A of the Code. (iii) As a result of the uncertainty in the application of Sections 280G and 4999 of the Code. The Company and Code at the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make time of a determination under hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the Executive’s benefit pursuant to this Section. The Agreement which should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Company shall bear all costs to or for the Accountants may reasonably incur Executive’s benefit pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”), in connection each case, consistent with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction calculation of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executivethe Reduced Amount hereunder. In the event that acceleration the Accountant, based upon the assertion of vesting a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountant believes has a high probability of equity awards is success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to be reduced, such acceleration of vesting or for the Executive’s benefit shall be cancelled repaid by the Executive to the Company together with interest at the applicable federal rate provided for in the reverse order Section 7872(f)(2)(A) of the date Code; provided, however, that no such repayment shall be required if and to the extent such deemed repayment would not either reduce the amount on which the Executive is subject to tax under Sections 1 and 4999 of grant the Code or generate a refund of such taxes. In the event that the Accountant, based on controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the Executive's equity awards’s benefit together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Section 280G Matters. If (a) To the benefits described in Sections 1 extent that (x) any current or former Service Provider would be entitled to any payment or benefit as a result of the Sale (either alone or upon the occurrence of any additional or subsequent events) and 2 herein, as applicable, (the "Severance Payment"y) such payment or benefit would otherwise or could reasonably be expected to constitute a “parachute payment payment” under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion the imposition of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable any excise Tax imposed under Section 4999 of the Code. Unless , the Company shall, (i) at least one (1) Business Day prior to seeking the stockholder approval and Executive otherwise agree providing the disclosure described below in writingclauses (ii) and (iii), use reasonable best efforts to obtain a binding written waiver by such Service Provider (each, an “Excess Parachute Waiver”) of any determination required portion of such parachute payment as exceeds three times such individual’s “base amount” within the meaning of Section 280G(b)(3) of the Code less one dollar (collectively, the “Excess Parachute Payments”) to the extent such Excess Parachute Payments are not subsequently approved pursuant to a stockholder vote intended to satisfy the requirements of Section 280G(b)(5)(B) of the Code and Treasury Regulations § 1.280G-1 thereunder (the “280G Stockholder Approval Requirements”); (ii) seek stockholder approval in a manner intended to satisfy the 280G Stockholder Approval Requirements in respect of the Excess Parachute Payments payable to all such Service Providers; and (iii) provide disclosure intended to satisfy the 280G Stockholder Approval Requirements to all Persons entitled to vote under this Section 5 will 280G(b)(5)(B)(ii) of the Code. (b) In connection with the foregoing, Purchaser shall provide the Company with all information reasonably necessary to allow the Company to determine whether any payments made or to be made in writing or benefits granted or to be granted pursuant to any employment agreement or other agreement, arrangement or contract entered into or negotiated by a national "Big Four" accounting firm selected by Purchaser together with all other payment and benefits, could reasonably be considered to be “parachute payments” within the meaning of Section 280G(b)(2) of the Code at least ten (10) days prior to the Closing Date (and shall further provide any such updated information as is reasonably necessary prior to the Closing Date). (c) Seller shall cause the Company or such other person or entity to which provide the parties mutually agree (Excess Parachute Waivers, disclosure to holders of Company Shares and the "Accountants")form of consent of stockholders to Purchaser for its prior review and comment, whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making shall consider in good faith any reasonable comments made by Purchaser. (d) Prior to the calculations required by this Section 5Closing Date, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning Company shall deliver to Purchaser written evidence of satisfaction of the application of Sections 280G and 4999 Stockholder Approval Requirements or written notice of the Code. The Company and the Executive shall furnish to the Accountants such information and documents non-satisfaction thereof, as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsapplicable.

Section 280G Matters. If The Company is a “small business corporation” as defined in Section 1361(b) of the benefits described in Sections 1 Internal Revenue Code. To the extent that (i) any “disqualified individual” (as such term is defined for purposes of Section 280G of the Internal Revenue Code) of the Company would be entitled to any payment or benefit as a result of the transactions contemplated by this Agreement and 2 herein, as applicable, (the "Severance Payment"ii) such payment or benefit would otherwise or could potentially constitute a “parachute payment payment” under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would or could reasonably be subject expected to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion the imposition of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable any excise Tax imposed under Section 4999 of the Internal Revenue Code. Unless , prior to the Closing: (a) The Company shall obtain stockholder approval in accordance with the requirements of Section 280G(b)(5)(B) of the Internal Revenue Code and Regulations § 1.280G-1 thereunder (the “280G Shareholder Approval Requirements”) in respect of the portion of such parachute payment that exceeds three times less one dollar such individual’s “base amount” within the meaning of Section 280G(b)(3) of the Internal Revenue Code with respect to all such “disqualified individuals”; (b) The Company shall provide all required disclosure to all Persons entitled to vote under Section 280G(b)(5)(B)(ii) of the Internal Revenue Code prior to such vote and shall hold a vote of stockholders in the manner intended to satisfy the 280G Shareholder Approval Requirements; Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission. (c) The Company shall obtain any required waivers or consents from the disqualified individual(s) prior to the vote, which vote shall establish whether the disqualified individual is entitled to receive or retain the waived payments or other waived compensation; and (d) The Buyer and its counsel shall be given the right to review and comment on all documents required to be delivered to the Company Stockholders in connection with such vote and Executive otherwise agree in writingany required disqualified individual waivers or consents, any determination required under this Section 5 will and the Company shall reflect all reasonable comments of the Buyer thereon. The Buyer and its counsel shall be made in writing by a national "Big Four" accounting firm selected provided copies of all documents executed by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive Stockholders and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur disqualified individuals in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsvote.

Section 280G Matters. If Notwithstanding any other provision of this Agreement to the contrary, in the event that any payment that is either received by Executive or paid by Company on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with Company or any other person whose payments or benefits described are treated as contingent on a change of ownership or control of Company (or in Sections 1 and 2 hereinthe ownership of a substantial portion of the assets of Company) or any person affiliated with Company or such person (but only if such payment or other benefit is in connection with Executive’s employment by Company) (collectively the “Company Payments”), as applicable, will be subject to the tax (the "Severance Payment"“Excise Tax”) would otherwise constitute a parachute payment under imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the "Code"and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Company Payments, or (ii) a portion of the Company Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Internal Revenue Code), whichever of clauses (i) and but for this Section would be subject to (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxInternal Revenue Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any Payments. Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the independent public accountant of Company or such other person or entity to which the parties mutually agree (the "“Accountants"”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposespurposes upon Company and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Internal Revenue Code. The If there is a reduction of the Company and the Executive shall furnish Payments pursuant to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any 11, such reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1A) reduction of any cash payments; severance payable by reference to Executive’s Base Salary or annual bonus, (2B) reduction of vesting acceleration of equity awards; any other cash amount payable to Executive, (C) any employee benefit valued as a “parachute payment,” and (3D) reduction of other benefits paid to Executive. In the event that acceleration of vesting of any outstanding equity awards is to be reducedaward. For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Company Payments are made to Executive after the application of the date cutback in this Section 11, which additional Company Payments result in the cutback no longer being applicable, Company shall pay Executive an additional amount equal to the value of grant for Executive's equity awardsthe Company Payments that were originally cutback. Company shall determine at the end of each calendar year whether any such restoration is necessary based on additional Company Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days following the last day of such calendar year. For the avoidance of doubt, in no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any Excise Tax, interest or penalties that may be imposed on the Company Payments by reason of the application of Section 280G or Section 4999 of the Internal Revenue Code.”

Section 280G Matters. If the benefits described in Sections 1 4 and 2 6 herein, as applicable, (or which are otherwise payable to Executive by the "Severance Payment") Company, would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "“Excise Tax"”), Executive shall either: : (ia) pay the Excise Tax, or or (iib) have the benefits reduced to such lesser extent (in such order as shall be determined by the Accounting/Benefits Firm and consistent with Section 409A of the Code) as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. . (c) Unless the Company and Executive otherwise agree in writing, any determination all determinations required under this Section 5 will (including any benefits to be so reduced) shall exclusively be made in writing by a national "Big Four" the Company’s independent certified public accountants or other nationally-recognized independent public accounting firm or nationally-recognized executive compensation/consulting firm in each case as selected by Executive and reasonably acceptable to and approved in writing by the Company or such other person or entity to which the parties mutually agree (the "Accountants"“Accounting/Benefits Firm”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5Section, the Accountants Accounting/Benefits Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants Accounting/Benefits Firm such information and documents as the Accountants Accounting/Benefits Firm may reasonably request in order to make a determination under this Section. The Company shall bear all fees and costs of the Accountants may reasonably incur Accounting/Benefits Firm in connection with any the calculations and determinations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsSection.

Section 280G Matters. If (a) In the event that any payment that is either received by Executive or paid by Employer or any of its Affiliates on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with Employer or any other person whose payments or benefits described are treated as contingent on a change of ownership or control of Employer (or in Sections 1 and 2 herein, as applicable, (the "Severance Payment") would otherwise constitute ownership of a parachute payment under Section 280G substantial portion of the Internal Revenue Code assets of 1986, as amended Employer) or any person affiliated with Employer (or its Affiliates) or such person (but only if such payment or other benefit is in connection with Executive’s employment by Employer) (collectively the "Code"“Employer Payments”), and but for this Section would will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code (the "Excise Tax"and any similar tax that may hereafter be imposed by any taxing authority), then Executive shall either: will be entitled to receive either (i) pay the Excise Taxfull amount of the Employer Payments, or (ii) have the benefits reduced to such lesser extent as would result in no a portion of the Employer Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such benefits being subject to term is defined in Section 280G(b)(3)(A) of the Excise TaxCode), whichever of the foregoing amountsclauses (i) and (ii), after taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any 5  (b) Any determination required under this Section 5 will 3 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree independent public accountant of Employer (the "“Accountants"”), whose determination will determination, absent manifest error, shall be conclusive and binding upon Executive and the Company for all purposespurposes upon Employer and Executive. For purposes of making the calculations any calculation required by this Section 53, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company If there is a reduction of the Employer Payments pursuant to this Section 3, such reduction shall occur in accordance with Section 409A of the Code and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur following in the following order: (1) reduction of any cash payments; severance payable by reference to Executive’s base salary or annual bonus, (2) reduction of vesting acceleration of equity awards; and any other cash amount payable to Executive, (3) reduction of other benefits paid to Executive. In the event that any employee benefit valued as a “parachute payment,” and (4) acceleration of vesting of any outstanding equity awards is to be reducedaward.  (c) For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Employer Payments are made to Executive after the application of the date cutback in this Section 3, which additional Employer Payments result in the cutback no longer being applicable, Employer shall pay Executive an additional amount equal to the value of grant for Executive's equity awards.the Employer Payments that were originally cut back. Employer shall determine at the end of each calendar year whether any such restoration is necessary based on additional Employer Payments (if any) made during such calendar year, and shall pay such restoration by March 15 of the calendar year following such calendar year. In no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Employer Payments by reason of the application of Section 280G or Section 4999 of the Code. 

Section 280G Matters. Within five Business Days after the date hereof, the Company will deliver to the Purchaser reasonably detailed information setting forth all persons who may be “disqualified individuals” as described below and who may be receiving payments or benefits in connection with the Merger (under this Agreement or any other contract, plan or arrangement with the Acquired Companies or otherwise, including severance payments, and acceleration of vesting or benefits under options or restricted stock), and any family or other relationships among the Stockholders that would result in attribution of ownership under Section 318 of the Code for the purposes set forth above, together with a worksheet or memorandum demonstrating the extent (if any) to which such payments, vesting or benefits constitute “excess parachute payments” within the meaning of Section 280G of the Code will be made to such disqualified individuals. Purchaser agrees to timely provide allocations of Stock Option Grants and/or Retention Pool amounts to the Company in a timely manner so that the stockholder vote contemplated below can be sought. If for any reason it reasonably appears to the benefits described Purchaser that a disqualified individual will receive an excess parachute payment, then the balance of this Section 5.7 will apply, in Sections 1 addition to any other rights and 2 hereinremedies the Purchaser may have. Prior to the Effective Time, as applicable, the Company will submit to the Stockholders (the "Severance Payment"“280G Submission”), and use all reasonable efforts to obtain, a stockholder vote or written consent (the “280G Vote”) would otherwise constitute a to approve or disapprove the right of any “disqualified individual” (as defined in Section 280G(c) of the Code) to receive or retain any and all payments that could be deemed “parachute payment payments” under Section 280G of the Internal Revenue Code of 1986Code, as amended (on the "Code"), following terms and but for this conditions interpreted in a manner which complies with Section would be subject to the excise tax imposed by Section 4999 280G of the Code and all applicable final, proposed or temporary regulations thereunder: (a) the "Excise Tax"stockholder approval will be timely solicited in form and substance and pursuant to such disclosure as will be sufficient to satisfy the stockholder approval requirements of Section 280G(b)(5)(B) of the Code, including requirements that such disqualified individual waive in advance the right to such payment if the requisite stockholder approval is not obtained, and such payments will be separately approved within the meaning of such regulations; and (b) for such approval to be effective as to any such payment, more than 75% of the voting power of the Company will have approved such payment without counting as outstanding or permitting to vote (except as contemplated by Treasury Regulations Section 1.280G-1, Q&A-7(b)(4), Executive shall either: ) any stock (i) pay actually owned or constructively owned under Section 318(a) of the Excise TaxCode by or for such disqualified individual, or (ii) have as to which the benefits reduced to such lesser extent as would result in no portion owner of such benefits being stock is considered under Section 318(a) of the Code to own any part of the stock owned directly or indirectly by or for such disqualified individual. Any disclosure submitted to the stockholders pursuant to this Section 5.7 will be subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state prior review and local income taxes and the Excise Tax, results in the receipt approval by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all Purchaser which shall not unreasonably be delayed or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardswithheld.

Section 280G Matters. If the benefits described in Sections 1 and 2 Section 4 or 5 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "“Excise Tax"”), Executive shall either: : (i) pay the Excise Tax, or or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by a national "Big Four" Company’s independent public accountants or other nationally-recognized accounting firm or executive compensation/consulting firm in each case as shall be reasonably selected by the Company or such other person or entity to which the parties mutually agree Executive (the "Accountants"“Accounting/Benefits Firm”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5Section, the Accountants Accounting/Benefits Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants Accounting/Benefits Firm such information and documents as the Accountants Accounting/Benefits Firm may reasonably request in order to make a determination under this Section. The Company shall bear all fees and costs of the Accountants may reasonably incur Accounting/Benefits Firm in connection with any the calculations and determinations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsSection.

Section 280G Matters. If Prior to the benefits described in Sections 1 Closing, the Company shall submit to the Stockholders (and 2 herein, such other persons as applicable, (the "Severance Payment") would otherwise constitute a parachute payment may be required under Section 280G of the Internal Revenue Code and the Treasury Regulations thereunder), for approval by a vote of 1986, Stockholders (and such other persons as amended may be required under Section 280G of the Code and the Treasury Regulations thereunder) as is required pursuant to Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder (the "Code"“280G Stockholder Vote”), any such payments or other benefits that, separately or in the aggregate, would otherwise be “parachute payments” within the meaning of Section 280G of the Code and but the Treasury Regulations thereunder (the “280G Payments”), such that, if the 280G Stockholder Vote is received approving the 280G Payments, such 280G Payments shall not cause there to be “excess parachute payments” under Section 280G of the Code and the Treasury Regulations thereunder. Prior to such 280G Stockholder Vote, the Company shall obtain, from each person whom the Company reasonably believes to be with respect to the Company or any of its Affiliates a “disqualified individual” (as defined in Section 280G of the Code and the Treasury Regulations thereunder) and who would otherwise receive or have the right or entitlement to receive a 280G Payment, a written waiver (in form and substance reasonably satisfactory to Parent) pursuant to which such person agrees to waive any and all right or entitlement to such 280G Payment, to the extent such payment would cause any payment not to be deductible pursuant to Section 280G of the Code. Such waivers shall cease to have any force or effect with respect to any item covered thereby to the extent the 280G Stockholder Vote for such item is obtained. The Company shall provide to Parent any materials to be distributed to Stockholders pursuant to this Section would 7.6 within a reasonable period of time prior to distribution to Stockholders, and such materials shall be subject to the excise tax imposed by Section 4999 prior review and approval of Parent (such approval not to be unreasonably withheld, conditioned or delayed). Prior to the Code Closing Date, the Company shall deliver to Parent written certification that either (a) the "Excise Tax"), Executive shall either: (i) pay 280G Stockholder Vote was solicited and the Excise TaxStockholder approval was obtained with respect to any 280G Payments that were subject to the 280G Stockholder Vote, or (iib) have the benefits reduced to Stockholder approval of any 280G Payments was not obtained, and, as a consequence, such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will 280G Payments shall not be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity provided to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.affected individual.‌

Section 280G Matters. If Notwithstanding any other provision of this Agreement or any other plan, program, arrangement, agreement or policy with or maintained by the benefits described Company: (i) In the event it is determined by a mutually agreed independent nationally recognized public accounting firm, which is engaged and paid for by the Company prior to the consummation of any transaction constituting a Change of Control (which for purposes of this Section 7(f) shall mean a change in Sections 1 and 2 herein, ownership or control as applicable, (determined in accordance with the "Severance Payment") would otherwise constitute a parachute payment regulations promulgated under Section 280G of the Internal Revenue Code Code), which accounting firm shall in no event be the accounting firm for the entity seeking to effectuate the Change of 1986, as amended Control (the "Code"“Accountant”), which determination shall be certified by the Accountant and but for this Section would be subject set forth in a certificate delivered to the excise tax imposed by Executive not less than ten (10) business days prior to the Change of Control setting forth in reasonable detail the basis of the (ii) Accountant's calculations (including any assumptions that the Accountant made in performing the calculations), that part or all of the consideration, compensation or benefits to be paid to the Executive under this Agreement constitute “parachute payments” under Section 280G(b)(2) of the Code, then, if the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to the Executive under any other plan, arrangement or agreement which constitute “parachute payments” (collectively, the “Parachute Amount”) exceeds the maximum amount that would not give rise to any liability under Section 4999 of the Code, the amounts constituting “parachute payments” which would otherwise be payable to the Executive or for his benefit shall be reduced to the maximum amount that would not give rise to any liability under Section 4999 of the Code (the "Excise Tax"“Reduced Amount”); provided that such amounts shall not be so reduced if the Accountant determines that without such reduction the Executive would be entitled to receive and retain, Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an a net after-tax basisbasis (including, of the greatest amount of benefitswithout limitation, notwithstanding that all or some portion of such benefits may be taxable any excise taxes payable under Section 4999 of the Code), an amount which is greater than the amount, on a net after-tax basis, that the Executive would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Executive otherwise agree in writing, any determination required In connection with making determinations under this Section 5 will 7(f), the Accountant shall take into account any positions to mitigate any excise taxes payable under Section 4999 of the Code, such as the value of any reasonable compensation for services to be made in writing by a national "Big Four" accounting firm selected rendered by the Company Executive before or such other person or entity after the Change of Control, including any amounts payable to which the parties mutually agree (Executive following the "Accountants")Executive's termination of advisory services with respect to any non-competition provisions that may apply to the Executive, whose determination will be conclusive and binding upon Executive and the Company shall cooperate in the valuation of any such services, including any non-competition provisions. (iii) If the determination made pursuant to Section 7(f)(i) results in a reduction of the payments that would otherwise be paid to the Executive except for all purposes. For purposes the application of making the calculations required by this Section 57(f)(i), the Accountants Company shall promptly give the Executive notice of such determination. Such reduction in payments shall be first applied to reduce any cash payments that the Executive would otherwise be entitled to receive (whether pursuant to this Agreement or otherwise) and shall thereafter be applied to reduce other payments and benefits, in each case, in reverse order beginning with the payments or benefits that are to be paid the furthest in time from the date of such determination, unless, to the extent permitted by Section 409A of the Code, the Executive elects to have the reduction in payments applied in a different order; provided that, in no event may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning such payments be reduced in a manner that would result in subjecting the Executive to additional taxation under Section 409A of the Code. (iv) As a result of the uncertainty in the application of Sections 280G and 4999 of the Code. The Company and Code at the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make time of a determination under hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the Executive’s benefit pursuant to this Section. The Agreement which should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Company shall bear all costs to or for the Accountants may reasonably incur Executive's benefit pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”), in connection each case, consistent with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction calculation of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executivethe Reduced Amount hereunder. In the event that acceleration the Accountant, based upon the assertion of vesting a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountant believes has a high probability of equity awards is success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to be reduced, such acceleration of vesting or for the Executive’s benefit shall be cancelled repaid by the Executive to the Company together with interest at the applicable federal rate provided for in the reverse order Section 7872(f)(2)(A) of the date Code; provided, however, that no such repayment shall be required if and to the extent such deemed repayment would not either reduce the amount on which the Executive is subject to tax under Sections 1 and 4999 of grant the Code or generate a refund of such taxes. In the event that the Accountant, based on controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the Executive's equity awards’s benefit together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Section 280G Matters. If Within one (1) Business Day after the date hereof, the Company will deliver to the Purchaser a list setting forth all persons who are "disqualified individuals" as described below, a detailed list of the payments that the disqualified individuals may receive (under this Agreement or any other contract, plan or arrangement with the Company or otherwise, including severance payments, and acceleration of vesting or benefits described in Sections 1 under options or restricted stock), and 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment payroll and compensation data needed to perform calculations under Section 280G of the Internal Revenue Code. The Company will also deliver within one (1) Business Day of the date hereof a description of any family or other relationships among the Stockholders that would result in attribution of ownership under Section 318 of the Code for the purposes set forth above, together with a worksheet or memorandum from the Company's outside accountants or other professional advisor reasonably acceptable to the Purchaser demonstrating the extent (if any) to which such payments, vesting or benefits constitute "excess parachute payments" within the meaning of 1986Section 280G of the Code will be made to such disqualified individuals. If for any reason it appears to such independent accounting firm or other professional advisor that a disqualified individual will receive an excess parachute payment, as amended (then the "Code")balance of this Section 5.7 will apply, in addition to any other rights and remedies the Purchaser may have. Prior to the Effective Time, the Company will submit to, and but for this use all reasonable efforts to obtain, a stockholder vote or written consent approving or denying the right of any "disqualified individual" (as defined in Section would 280G(c) of the Code) to receive or retain any and all payments that could be subject to the excise tax imposed by deemed "parachute payments" under Section 4999 280G of the Code (or, if such payments are not approved, then such payments shall be forfeited the extent that any such payments would constitute "Excise Tax"parachute payments" under Section 280G of the Code), Executive shall eitheron the following terms and conditions interpreted in a manner which complies with Section 280G of the Code and all applicable final, proposed or temporary regulations thereunder: (a) such payments so submitted for approval will be computed without reduction for any amounts which could otherwise be treated as excludible, reasonable compensation for services rendered before or after the Effective Time under Section 280G(b)(4) of the Code; (b) the stockholder approval will be timely solicited in form and substance and pursuant to such disclosure as will be sufficient to satisfy the stockholder approval requirements for the private company exemption of Section 280G(b)(5) of the Code, including requirements that such disqualified individual waive in advance the right to such payment if the requisite stockholder approval is not obtained, and such payments will be separately approved within the meaning of such regulations; and (c) for such approval to be effective as to any such payment, more than seventy-five percent (75%) of the voting power of the Company will have approved such payment without counting as outstanding or permitting to vote (except, as contemplated by Treasury Regulations Section 1.280G-1, Q&A-7(b)(4)), any stock (i) pay actually owned or constructively owned under Section 318(a) of the Excise TaxCode by or for such disqualified individual, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes owner of making the calculations required by this such stock is considered under Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 318(a) of the Code. The Company and the Executive shall furnish Code to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with own any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order part of the date of grant stock owned directly or indirectly by or for Executive's equity awardssuch disqualified individual.

Section 280G Matters. If To the benefits described in Sections 1 and 2 herein, as applicable, (extent necessary to avoid the "Severance Payment") would otherwise constitute a parachute payment under application of Section 280G of the Internal Revenue Code of 1986and the applicable final Treasury regulations and rulings thereunder, as amended (the "Code"), and but for this Section would be subject prior to the excise tax imposed by Closing, the Seller Parties shall cause the Companies, with respect to such payments or benefits that are reasonably likely to, separately or in the aggregate, without regard to the measures described herein, constitute “parachute payments” within the meaning of Section 4999 280G(b)(2) of the Code and the applicable final Treasury regulations and rulings thereunder (the "Excise Tax"“Section 280G Payments”), Executive shall either: to use reasonable best efforts to conduct a vote satisfying the requirements of Section 280G(b)(5) of the Code and the applicable final Treasury regulations and rulings thereunder, including reasonable best efforts to obtain waivers, from any “disqualified individual” (ias defined in Treasury Regulation Section 1.280G-1) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in that if such vote is successful then no portion of the Section 280G Payments will constitute a “parachute payment” and such benefits being subject to that the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion deduction of such benefits may Section 280G Payments will not be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing limited by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G(a) of the Code and the applicable final Treasury regulations and rulings thereunder. The Seller Parties shall cause the Companies to forward to Buyer, and allow Buyer to review and comment upon, prior to submission to the stockholders of the applicable Company, copies of all material documents prepared for purposes of complying with this Section 5.16 and shall consider any such comments in good faith. The Seller Parties shall indemnify Buyer for any deductions disallowed pursuant to Section 280G and 4999 of the CodeCode and the applicable final Treasury regulations and rulings thereunder. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with value of any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting deductions indemnifiable hereunder shall be cancelled in the reverse order calculated assuming a 35% tax rate. Table of the date of grant for Executive's equity awards.Contents

Section 280G Matters. If To the benefits described in Sections 1 extent that (i) any “disqualified individual” (as such term is defined for purposes of Section 280G of the Code) of an Acquired Company would be entitled to any payment or benefit as a result of the transactions contemplated by this Agreement and 2 herein, as applicable, (the "Severance Payment"ii) such payment or benefit would otherwise or could potentially constitute a “parachute payment payment” under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would or could reasonably be subject expected to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion the imposition of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable any excise Tax imposed under Section 4999 of the Code. Unless , prior to the Closing: (a) the Company shall use its commercially reasonable efforts to obtain a binding written waiver by such “disqualified individual” (each, an “Excess Parachute Waiver”) of any portion of such parachute payment as exceeds three times less one dollar such individual’s “base amount” within the meaning of Section 280G(b)(3) of the Code (collectively, the “Excess Parachute Payments”) to the extent such Excess Parachute Payments are not subsequently approved pursuant to a stockholder vote in accordance with the requirements of Section 280G(b)(5)(B) of the Code and Executive otherwise agree Regulations § 1.280G-1 thereunder (the “280G Shareholder Approval Requirements”); (b) the Company shall use its commercially reasonable efforts to obtain stockholder approval in writinga manner that satisfies the 280G Shareholder Approval Requirements in respect of the Excess Parachute Payments payable to all such “disqualified individuals”; (c) the Company shall provide all required disclosure to all persons entitled to vote under Section 280G(b)(5)(B)(ii) of the Code and shall hold a vote of stockholders in the manner intended to satisfy the 280G Shareholder Approval Requirements; and (d) the Excess Parachute Waivers, disclosure to holders of Company Capital Stock and any determination required under other resolutions, notices or other documents issued, distributed, adopted or executed in connection with the implementation of this Section 5 will 6.13 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity subject to which the parties mutually agree (the "Accountants")Parent’s prior review and comment, whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required shall revise any such documentation to take into account any reasonable comments made by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsParent.

Section 280G Matters. If the benefits described in Sections 1 and 2 Section 4 or 5 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "“Excise Tax"”), Executive shall either: : (i) pay the Excise Tax, or or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by a national "Big Four" Company’s independent public accountants or other nationally-recognized accounting firm or executive compensation/s consulting firm in each case as shall be reasonably selected by the Company or such other person or entity to which the parties mutually agree Executive (the "Accountants"“Accounting/Benefits Firm”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5Section, the Accountants Accounting/Benefits Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants Accounting/Benefits Firm such information and documents as the Accountants Accounting/Benefits Firm may reasonably request in order to make a determination under this Section. The Company shall bear all fees and costs of the Accountants may reasonably incur Accounting/Benefits Firm in connection with any the calculations and determinations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsSection.

Section 280G Matters. If To the extent necessary, prior to the Closing, the Company Group shall use its reasonable best efforts to obtain, from each individual who has a right (whether or not contingent) to any payments and/or benefits described as a result of or in Sections 1 and 2 hereinconnection with the Transactions that, as applicableindividually or in the aggregate, (could be deemed to constitute “parachute payments” within the "Severance Payment") would otherwise constitute a parachute payment under meaning of Section 280G of the Internal Revenue Code (“Section 280G Payments”), a written agreement waiving such individual’s right to receive such portion of 1986such payments and/or benefits to the extent necessary so that none of the remaining payments and/or benefits applicable to such individual would reasonably be expected to constitute “parachute payments” (as defined in Section 280G(b)(2) of the Code) (such waived portion, as amended (the "Code"“Waived 280G Benefits”), and but accepting in substitution for this the Waived 280G Benefits the right to receive the Waived 280G Benefits only if approved by the requisite stockholders in a manner that complies with Section would 280G(b)(5)(B) of the Code. In connection with the foregoing, Parent shall provide the Company Group with all information reasonably necessary and available to Parent to allow the Company Group to determine whether any payments made or to be subject made or benefits granted or to be granted pursuant to any employment agreement or other agreement, arrangement or contract entered into or negotiated by Parent or its Affiliates (“Parent Payments”), together with all Section 280G Payments, could reasonably be considered to be “parachute payments” within the excise tax imposed by meaning of Section 4999 280G(b)(2) of the Code at least ten (10) Business Days prior to the "Excise Tax")Closing Date; there shall be no breach of this Section 6.11 or Section 3.16(f) resulting from the Company Group’s failure to include any Parent Payments in the Section 280G materials due to Parent’s failure to provide such information in respect of the Parent Payments. Promptly following the execution of such waivers, Executive and in all events prior to the Closing, the Company Group shall either: solicit the approval of the requisite stockholders of any Waived 280G Benefits to the extent and in the manner required under Section 280G(b)(5)(B) of the Code; provided, that in no event shall the Company Group be deemed in breach of this Section 6.11 or Section 3.16(f) if any such individual refuses to waive any such rights, despite the Company’s reasonable best efforts, or if the stockholders fail to approve any Waived 280G Benefits. Within a reasonable time prior to soliciting such waivers and approvals, respectively, the Company Group shall provide drafts of such waivers and such stockholder approval materials (together with the calculations and supporting documentation) to Parent for Parent’s review and comment, which the Company Group shall consider and incorporate in good faith. To the extent that any of the Waived 280G Benefits are not approved by the requisite stockholders as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing, the Company Group shall deliver to Parent evidence that a vote of the requisite stockholders was solicited in accordance with the foregoing provisions of this Section 6.11 and that either (i) pay the Excise Taxrequisite number of votes was obtained with respect to the Waived 280G Benefits (the “280G Approval”), or (ii) have the benefits reduced to such lesser extent 280G Approval was not obtained, and, as would result in no portion of such benefits being subject to a consequence, the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will Waived 280G Benefits shall not be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsprovided.

Section 280G Matters. If In the event that any payments, accelerated vesting or other benefits described payable to Executive under this Agreement or otherwise, calculated in Sections 1 and 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under manner consistent with Section 280G of the Internal Revenue Code, would constitute "parachute payments" within the meaning of Section 280G of the Code of 1986, as amended (the "Code"“Parachute Payments”), and but for this Section the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($1.00) less than the amount that would cause the Parachute Payments to be subject to the excise tax imposed by under Section 4999 of the Code (the "“Excise Tax"”), Executive ; provided that the Parachute Payments shall either: (i) pay the Excise Tax, or (ii) have the benefits only be reduced to such lesser the extent as the after-tax value of amounts received by Executive after application of the above reduction would result in no portion exceed the after-tax value of the amounts received without application of such benefits being subject to the Excise Taxreduction, whichever of the foregoing amounts, after taking into account the applicable federal, state state, and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by If a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or or benefits required by this Section 5 constituting Parachute Payments is necessary, reduction shall occur in the following order, and in all events such reduction shall occur in accordance with the requirements of Section 409A of the Code: (1i) reduction of cash payments; (2ii) cancellation of accelerated vesting of equity or equity-linked awards; (iii) reduction of employee benefits. Payments, accelerated vesting acceleration of equity awards; or benefits shall be reduced or cancelled (as applicable), such reduction or cancellation shall occur in reverse chronological order with the payments to be paid furthest in the future being reduced first and (3) reduction of other benefits paid to Executive. In the event that with acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be being cancelled in the reverse order of the date of grant for grant. Notwithstanding anything to the contrary set forth herein, Executive may not elect the order in which the reduction in Executive's equity awards’s Parachute Payments will occur, and no such reduction or elimination shall apply, to the extent that such election accelerates or defers the timing of a payment or benefit in a manner that causes the payment or benefit to be subject to the additional tax pursuant to Section 409A of the Code. Any determinations and calculations required under this Section 5(k) shall be made by an independent public accounting firm engaged by the Company. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Executive and the Company no later than fifteen (15) calendar days after the date on which Executive’s right to a Parachute Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Company.

Section 280G Matters. (a) Within five days after the date hereof, the Company will deliver a document setting forth in reasonable detail a list of all persons who may be “disqualified individuals” (as defined in Section 280G(c) of the Code) and who may be receiving payments or benefits in connection with the Merger (under this Agreement or any other contract, plan or arrangement with the Company or otherwise, including severance payments and acceleration of vesting or repurchase right lapse, or benefits under options or restricted stock). Such document shall be accompanied by a worksheet or memorandum from the Company’s counsel demonstrating the extent (if any) to which such payments, vesting or benefits constituting “excess parachute payments” within the meaning of Section 280G of the Code will or could be made to such disqualified individuals. If for any reason it will reasonably appear that a disqualified individual will receive an excess parachute payment, then the benefits described balance of this Section 4.18 will apply, in Sections 1 addition to any other rights and 2 hereinremedies Parent may have. (b) Prior to the Effective Time of Merger, as applicablethe Company will submit to, (and use all reasonable efforts to obtain, a shareholder vote or written consent approving the "Severance Payment") would otherwise constitute a right of any “disqualified individual” to receive or retain any and all payments that could be deemed “parachute payment payments” under Section 280G of the Internal Revenue Code of 1986and the related waiver by such “disqualified individual” described in clause (b) below, as amended (on the "Code"), following terms and but for this conditions interpreted in a manner which complies with Section would be subject to the excise tax imposed by Section 4999 280G of the Code and all applicable final, proposed or temporary regulations thereunder: (a) such payments so submitted for approval will be computed without reduction for any amounts which could otherwise be treated as excludable, reasonable compensation for services rendered before or after the "Excise Tax"Effective Time of the Merger under Section 280G(b)(4) of the Code; such payments will be calculated assuming all options and restricted stock are ultimately settled at the maximum FDA Milestone Consideration; such payments will be calculated including maximum severance potentially payable; such payments will not include post-merger base pay, performance bonus, company-paid employee benefits or other compensatory amounts paid or available for performance of post-merger services; (b) the shareholder approval will be timely solicited in form and substance and pursuant to such disclosure as will be sufficient to satisfy the shareholder approval requirements for the small business exemption of Section 280G(b)(5) of the Code, including requirements that such disqualified individual waive in advance the right to such payment if the requisite shareholder approval is not obtained, and such payments will be separately approved within the meaning of such regulations; and (c) for such approval to be effective as to any such payment, 75% or more of the voting power of the Company will have approved such payment without counting as outstanding or permitting to vote (except as contemplated by Treasury Regulations Section 1.280G-1, Q&A-7(b)(4), Executive shall either: ) any stock (i) pay actually owned or constructively owned under Section 318(a) of the Excise TaxCode by or for such disqualified individual, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes owner of making the calculations required by this such stock is considered under Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 318(a) of the Code. The Company and the Executive shall furnish Code to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with own any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order part of the date of grant stock owned directly or indirectly by or for Executive's equity awardssuch disqualified individual.

Section 280G Matters. If  In the event that any payment that is either received by Executive or paid by the Employer or any of its Affiliates on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with the Employer or any other person whose payments or benefits described in Sections 1 and 2 herein, are treated as applicable, (the "Severance Payment") would otherwise constitute contingent on a parachute payment under Section 280G change of ownership or control of the Internal Revenue Code Employer (or in the ownership of 1986, as amended a substantial portion of the assets of the Employer) or any person affiliated with the Employer (or its Affiliates) or such person (but only if such payment or other benefit is in connection with Executive’s employment by the "Code"Employer) (collectively the “Employer Payments”), and but for this Section would will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Employer Payments, or (ii) a portion of the Employer Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income and employment taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxCode, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodeEmployer Payments. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which independent public accountant of the parties mutually agree Employer (the "“Accountants"”), whose determination will determination, absent manifest error, shall be conclusive and binding upon Executive and the Company for all purposespurposes upon the Employer and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company If there is a reduction of the Employer Payments pursuant to this Section 11, such reduction shall occur in accordance with Section 409A of the Code and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur following in the following order: : (1A) reduction of any cash payments; severance payable by reference to the Executive’s Base Salary or Annual Bonus, (2B) reduction of vesting acceleration of equity awards; and (3) reduction of any other benefits paid cash amount payable to Executive. In the event that , (C) any employee benefit valued as a “parachute payment,” and (D) acceleration of vesting of any outstanding equity awards is to be reducedaward.  For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Employer Payments are made to Executive after the application of the date cutback in this Section 11, which additional Employer Payments result in the cutback no longer being applicable, the Employer shall pay Executive an additional amount equal to the value of grant for Executive's equity awards.the Employer Payments that were originally cut back. The Employer shall determine at the end of each calendar year whether any such restoration is necessary based on additional Employer Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days of the last day of such calendar year. In no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Employer Payments by reason of the application of Section 280G or Section 4999 of the Code. 

Section 280G Matters. If Notwithstanding any other provision of this Agreement to the contrary, in the event that any payment that is either received by Executive or paid by Company on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with Company or any other person whose payments or benefits described are treated as contingent on a change of ownership or control of Company (or in Sections 1 and 2 hereinthe ownership of a substantial portion of the assets of Company) or any person affiliated with Company or such person (but only if such payment or other benefit is in connection with Executive’s employment by Company) (collectively the “Company Payments”), as applicable, will be subject to the tax (the "Severance Payment"“Excise Tax”) would otherwise constitute a parachute payment under imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the "Code"and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Company Payments, or (ii) a portion of the Company Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Internal Revenue Code), whichever of clauses (i) and but for this Section would be subject to (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxInternal Revenue Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any Payments. Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" the independent registered public accounting firm selected by of the Company or such other person or entity to which the parties mutually agree (the "“Accountants"”), whose determination will shall be conclusive and binding for all purposes upon Executive and the Company for all purposesand Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Internal Revenue Code. The If there is a reduction of the Company and the Executive shall furnish Payments pursuant to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any 11, such reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1A) reduction of any cash payments; severance payable by reference to Executive’s Base Salary or annual bonus, (2B) reduction of vesting acceleration of equity awards; any other cash amount payable to Executive, (C) any employee benefit valued as a “parachute payment,” and (3D) reduction of other benefits paid to Executive. In the event that acceleration of vesting of any outstanding equity awards is to be reducedaward. For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Company Payments are made to Executive after the application of the date cutback in this Section 11, which additional Company Payments result in the cutback no longer being applicable, Company shall pay Executive an additional amount equal to the value of grant for Executive's equity awardsthe Company Payments that were originally cutback. The Company shall determine at the end of each calendar year whether any such restoration is necessary based on additional Company Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days following the last day of such calendar year. For the avoidance of doubt, in no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any Excise Tax, interest or penalties that may be imposed on the Company Payments by reason of the application of Section 280G or Section 4999 of the Internal Revenue Code.”

Section 280G Matters. If Notwithstanding any other provision of this Agreement to the benefits described in Sections 1 and 2 hereincontrary, as applicable, (if the "Severance Payment") would otherwise constitute a parachute payment under Section 280G event triggering for application of the Internal Revenue Code “Gross-Up Payment” provisions in Section 11(a) and (b) occurs after September 8, 2013, the provisions of 1986this Section 11(d) will apply. In the event that any payment that is either received by Executive or paid by the Employer on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with the Employer or any other person whose payments or benefits are treated as amended contingent on a change of ownership or control of the Employer (or in the "Code"ownership of a substantial portion of the assets of the Employer) or any person affiliated with the Employer or such person (but only if such payment or other benefit is in connection with Executive’s employment by the Employer) (collectively the “Employer Payments”), and but for this Section would will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Employer Payments, or (ii) a portion of the Employer Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxCode, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodeEmployer Payments. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which independent public accountant of the parties mutually agree Employer (the "“Accountants"”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposespurposes upon the Employer and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and If there is a reduction of the Executive shall furnish Employer Payments pursuant to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any 11, such reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1A) reduction of any cash payments; severance payable by reference to the Executive’s Base Salary or Annual Bonus, (2B) reduction of vesting acceleration of equity awards; any other cash amount payable to Executive, (C) any employee benefit valued as a “parachute payment,” and (3D) reduction of other benefits paid to Executive. In the event that acceleration of vesting of any outstanding equity awards is to be reducedaward. For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Employer Payments are made to Executive after the application of the date cutback in this Section 11, which additional Employer Payments result in the cutback no longer being applicable, the Employer shall pay Executive an additional amount equal to the value of grant for Executive's equity awardsthe Employer Payments that were originally cutback. The Employer shall determine at the end of each calendar year whether any such restoration is necessary based on additional Employer Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days of the last day of such calendar year. In no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Employer Payments by reason of the application of Section 280G or Section 4999 of the Code.

Section 280G Matters. If Prior to the benefits described in Sections 1 Closing, the Company shall submit to the Stockholders (and 2 herein, such other persons as applicable, (the "Severance Payment") would otherwise constitute a parachute payment may be required under Section 280G of the Internal Revenue Code and the Treasury Regulations thereunder), for approval by a vote of 1986, Stockholders (and such other persons as amended may be required under Section 280G of the Code and the Treasury Regulations thereunder) as is required pursuant to Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder (the "Code"“280G Stockholder Vote”), any such payments or other benefits that, separately or in the aggregate, would otherwise be “parachute payments” within the meaning of Section 280G of the Code and but the Treasury Regulations thereunder (the “280G Payments”), such that, if the 280G Stockholder Vote is received approving the 280G Payments, such 280G Payments shall not cause there to be “excess parachute payments” under Section 280G of the Code and the Treasury Regulations thereunder. Prior to such 280G Stockholder Vote, the Company shall obtain, from each person whom the Company reasonably believes to be with respect to the Company or any of its Affiliates a “disqualified individual” (as defined in Section 280G of the Code and the Treasury Regulations thereunder) and who would otherwise receive or have the right or entitlement to receive a 280G Payment, a written waiver (in form and substance reasonably satisfactory to Parent) pursuant to which such person agrees to waive any and all right or entitlement to such 280G Payment, to the extent such payment would cause any payment not to be deductible pursuant to Section 280G of the Code. Such waivers shall cease to have any force or effect with respect to any item covered thereby to the extent the 280G Stockholder Vote for such item is obtained. The Company shall provide to Parent any materials to be distributed to Stockholders pursuant to this Section would 7.6 within a reasonable period of time prior to distribution to Stockholders, and such materials shall be subject to the excise tax imposed by Section 4999 prior review and approval of Parent (such approval not to be unreasonably withheld, conditioned or delayed). Prior to the Code Closing Date, the Company shall deliver to Parent written certification that either (a) the "Excise Tax"), Executive shall either: (i) pay 280G Stockholder Vote was solicited and the Excise TaxStockholder approval was obtained with respect to any 280G Payments that were subject to the 280G Stockholder Vote, or (iib) have the benefits reduced to Stockholder approval of any 280G Payments was not obtained, and, as a consequence, such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will 280G Payments shall not be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity provided to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsaffected individual.

Section 280G Matters. If The Company shall, or shall cause its applicable Affiliate to, prior to the Closing Date, solicit and obtain a written waiver from each “disqualified individual” (within the meaning of Section 280G(c) of the Code) of his or her right to any and all payments or other benefits described that could be deemed “parachute payments” under Section 280G(b) of the Code (determined without regard to Sections 280G(b)(5)(B) and 280G(b)(5) of the Code) if such payments are not approved by the Company’s, or its applicable Affiliate’s, stockholders in Sections 1 a manner intended to satisfy the requirements of Section 280G(b)(5)(B) and 2 hereinany regulations (including proposed regulations) thereunder. As soon as reasonably practicable thereafter but in any event no later than five (5) Business Days prior to the Closing Date, the Company, or its applicable Affiliate, shall solicit stockholder approval of any and all such waived payments or benefits in a manner intended to satisfy the requirements for the exemption under Section 280G(b)(5)(A)(ii) of the Code and any regulations (including proposed regulations) issued thereunder, including the provision of adequate disclosure to all applicable stockholders of all material facts concerning all payments that, in the absence of such stockholder approval, could be classified as applicable, (the "Severance Payment") would otherwise constitute “parachute payments” to a parachute payment “disqualified individual” under Section 280G of the Internal Revenue Code. The Company, or its applicable Affiliate, shall provide such adequate disclosure to the applicable stockholders in a manner intended to satisfy Section 280G(b)(5)(B) of the Code and any regulations issued thereunder. Not less than three (3) Business Days prior to obtaining such waivers and soliciting approval from the Company’s, or its applicable Affiliate’s, stockholders, the Company, or its applicable Affiliate, shall provide Parent with drafts of 1986all materials relating to such vote (including any waivers, as amended consents or disclosure statements) along with its analysis under Section 280G of the Code for Parent’s reasonable review and comment (the "Code"which review and comment shall not be unreasonably withheld or delayed by Parent), and but the Company, or its applicable Affiliate, (and its advisors) shall consider (in good faith) for this Section would be subject incorporation of such comments. In addition, prior to the excise tax imposed by Company’s delivery of such materials to Parent for Parent’s review, Parent shall provide in writing to the Company the relevant details of all payments, benefits and arrangements, if any, to be entered into with or otherwise provided to any “disqualified individual” under Section 4999 280G of the Code (by Parent or any Affiliate or Subsidiary of Parent, in each case prior to or on the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the Closing Date and that could reasonably be expected to be taken into account in determining whether any payments and benefits reduced constitute “parachute payment” pursuant to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever Section 280G of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of Code with respect to any such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur Person in connection with any calculations contemplated by the transactions under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsAgreement.

Section 280G Matters. If In the event that any payment that is either received by Executive or paid by the Employer or any of its Affiliates on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with the Employer or any other person whose payments or benefits described in Sections 1 and 2 herein, are treated as applicable, (the "Severance Payment") would otherwise constitute contingent on a parachute payment under Section 280G change of ownership or control of the Internal Revenue Code Employer (or in the ownership of 1986, as amended a substantial portion of the assets of the Employer) or any person affiliated with the Employer (or its Affiliates) or such person (but only if such payment or other benefit is in connection with Executive’s employment by the "Code"Employer) (collectively the “Employer Payments”), and but for this Section would will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Employer Payments, or (ii) a portion of the Employer Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income and employment taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxCode, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodeEmployer Payments. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which independent public accountant of the parties mutually agree Employer (the "“Accountants"”), whose determination will determination, absent manifest error, shall be conclusive and binding upon Executive and the Company for all purposespurposes upon the Employer and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company If there is a reduction of the Employer Payments pursuant to this Section 11, such reduction shall occur in accordance with Section 409A of the Code and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur following in the following order: : (1a) reduction of any cash payments; severance payable by reference to the Executive’s Base Salary or Annual Bonus, (2b) reduction of vesting acceleration of equity awards; and (3) reduction of any other benefits paid cash amount payable to Executive. In the event that , (c) any employee benefit valued as a “parachute payment,” and (d) acceleration of vesting of any outstanding equity awards is to be reducedaward. For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Employer Payments are made to Executive after the application of the date cutback in this Section 11, which additional Employer Payments result in the cutback no longer being applicable, the Employer shall pay Executive an additional amount equal to the value of grant for Executive's equity awardsthe Employer Payments that were originally cut back. The Employer shall determine at the end of each calendar year whether any such restoration is necessary based on additional Employer Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days of the last day of such calendar year. In no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Employer Payments by reason of the application of Section 280G or Section 4999 of the Code.