Common use of Best Pay Cap Clause in Contracts

Best Pay Cap. Notwithstanding any other provision of this Agreement, if any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, the Total Payments shall be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company shall reduce or eliminate the Total Payments (A) by first reducing or eliminating the portion of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)), (B) then by reducing or eliminating cash payments (other than that portion of the Total Payments subject to clause (C)) and (C) then by reducing or eliminating the portion of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 44 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, the Total Payments shall be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company shall reduce or eliminate the Total Payments (A) by first reducing or eliminating the portion of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)) hereof), (B) then by reducing or eliminating cash payments (other than that portion of the Total Payments subject to clause (C)) hereof) and (C) then by reducing or eliminating the portion of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 44 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (iA) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (iiB) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the The Total Payments are so reduced, shall be reduced in the Company shall reduce or eliminate the Total Payments following order: (A) by first reducing or eliminating reduction of any cash severance payments otherwise payable to the portion Executive that are exempt from Section 409A of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)), Code; (B) then by reducing or eliminating reduction of any other cash payments (other than or benefits otherwise payable to the Executive that portion are exempt from Section 409A of the Total Payments subject Code, but excluding any payments attributable to clause (C)) and any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) then by reducing reduction of any other payments or eliminating benefits otherwise payable to the portion Executive on a pro-rata basis or such other manner that complies with Section 409A of the Total Payments Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (whether payable in cash D) reduction of any payments attributable to any acceleration of vesting or not payable in cash) payments with respect to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) appliesany equity award that are exempt from Section 409A of the Code, in each case in reverse order beginning with payments or benefits which are to that would otherwise be paid the farthest made last in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 44 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the The Total Payments are so reduced, shall be reduced in the Company shall reduce or eliminate the Total Payments following order: (A) by first reducing or eliminating reduction of any cash severance payments otherwise payable to the portion Executive that are exempt from Section 409A of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)), Code; (B) then by reducing or eliminating reduction of any other cash payments (other than or benefits otherwise payable to the Executive that portion are exempt from Section 409A of the Total Payments subject Code, but excluding any payments attributable to clause (C)) and any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) then by reducing reduction of any other payments or eliminating benefits otherwise payable to the portion Executive on a pro-rata basis or such other manner that complies with Section 409A of the Total Payments Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (whether payable in cash D) reduction of any payments attributable to any acceleration of vesting or not payable in cash) payments with respect to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) appliesany equity award that are exempt from Section 409A of the Code, in each case in reverse order beginning with payments or benefits which are to that would otherwise be paid the farthest made last in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive Employee (including any payment or benefit received in connection with a termination of the ExecutiveEmployee’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 44 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the The Total Payments are so reduced, shall be reduced in the Company shall reduce or eliminate the Total Payments following order: (A) by first reducing or eliminating reduction of any cash severance payments otherwise payable to the portion Employee that are exempt from Section 409A of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)), Code; (B) then by reducing or eliminating reduction of any other cash payments (other than or benefits otherwise payable to the Employee that portion are exempt from Section 409A of the Total Payments subject Code, but excluding any payments attributable to clause (C)) and any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) then by reducing reduction of any other payments or eliminating benefits otherwise payable to the portion Employee on a pro-rata basis or such other manner that complies with Section 409A of the Total Payments Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (whether payable in cash D) reduction of any payments attributable to any acceleration of vesting or not payable in cash) payments with respect to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) appliesany equity award that are exempt from Section 409A of the Code, in each case in reverse order beginning with payments or benefits which are to that would otherwise be paid the farthest made last in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 44 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, the Total Payments shall be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company shall reduce or eliminate the Total Payments (A) by first reducing or eliminating the portion of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)) hereof), (B) then by reducing or eliminating cash payments (other than that portion of the Total Payments subject to clause (C)) hereof) and (C) then by reducing or eliminating the portion of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 1.280G- 1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive you (including any payment or benefit received in connection with a termination of the Executive’s your employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 48 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, your remaining Total Payments shall be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company The reduction undertaken pursuant to this Section 9(a) shall reduce or eliminate the Total Payments (A) be accomplished first by first reducing or eliminating the portion any cash payments subject to Section 409A of the Total Payments which are not payable Code as deferred compensation (with payments to be made furthest in cash (other than that portion of the Total Payments subject to clause (C)future being reduced first), (B) then by reducing or eliminating cash payments (other than that portion are not subject to Section 409A of the Total Payments subject to clause (C)) and (C) Code, then by reducing payments attributable to equity-based compensation (or eliminating the portion accelerated vesting thereof) subject to Section 409A of the Total Payments Code as deferred compensation (whether payable with payments to be made furthest in cash or not payable in cash) the future being reduced first), and finally by reducing payments attributable to which Treasury Regulation § 1.280G-1 Q/A 24(c) equity-based compensation (or successor theretothe accelerated vesting thereof) applies, in each case in reverse order beginning with payments or benefits which are that is not subject to be paid Section 409A of the farthest in timeCode.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive or paid on Executive’s behalf (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or Agreement, any other plan, arrangement or agreementagreement or otherwise) (all such payments and benefits, including the payments and benefits under Section 4, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any similar tax that may be imposed by any taxing authority) (such excise tax or similar tax, the “Excise Tax”), then, then the Total Payments shall be reduced, reduced solely to the extent necessary so to ensure that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income or payroll taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local or payroll income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If a reduction is to occur pursuant to this Section 6.1, unless an affirmative election by Executive is permitted by (such that it would not result in taxation under) Section 409A, the reduction to the Total Payments are so reducedshall be implemented in the following order: (i) cash severance payments under this Agreement; (ii) accelerated vesting of any equity-based awards; (iii) non-cash benefits under this Agreement; and (iv) any other payments or benefits under this Agreement or otherwise. If no reduction is to occur pursuant to this Section 6.1, the Company shall reduce or eliminate the Total Payments (A) by first reducing or eliminating the portion of the Total Payments which are not payable shall be delivered and paid to Executive in cash (other than that portion of the Total Payments subject to clause (C)), (B) then by reducing or eliminating cash payments (other than that portion of the Total Payments subject to clause (C)) and (C) then by reducing or eliminating the portion of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in timefull.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive you (including any payment or benefit received in connection with a termination of the Executive’s your employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 46 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, your remaining Total Payments shall be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company The reduction undertaken pursuant to this Section 7(a) shall reduce or eliminate the Total Payments (A) be accomplished first by first reducing or eliminating the portion any cash payments subject to Section 409A of the Total Payments which are not payable Code as deferred compensation (with payments to be made furthest in cash (other than that portion of the Total Payments subject to clause (C)future being reduced first), (B) then by reducing or eliminating cash payments (other than that portion are not subject to Section 409A of the Total Payments subject to clause (C)) and (C) Code, then by reducing payments attributable to equity-based compensation (or eliminating the portion accelerated vesting thereof) subject to Section 409A of the Total Payments Code as deferred compensation (whether payable with payments to be made furthest in cash or not payable in cash) the future being reduced first), and finally by reducing payments attributable to which Treasury Regulation § 1.280G-1 Q/A 24(c) equity-based compensation (or successor theretothe accelerated vesting thereof) applies, in each case in reverse order beginning with payments or benefits which are that is not subject to be paid Section 409A of the farthest in timeCode.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive Employee (including any payment or benefit received in connection with a termination of the ExecutiveEmployee’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 44 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the The Total Payments are so reduced, shall be reduced in the Company shall reduce or eliminate the Total Payments following order: (A) by first reducing or eliminating reduction of any cash severance payments otherwise payable to the portion of the Total Payments which Employee that are not payable in cash (other than that portion of the Total Payments subject to clause (C)), exempt from Section 409A; (B) then by reducing or eliminating reduction of any other cash payments (other than or benefits otherwise payable to the Employee that portion are exempt from Section 409A, but excluding any payments attributable to any acceleration of the Total Payments subject vesting or payments with respect to clause (C)) and any equity award that are exempt from Section 409A; (C) then by reducing reduction of any other payments or eliminating benefits otherwise payable to the portion Employee on a pro-rata basis or such other manner that complies with Section 409A, but excluding any payments attributable to any acceleration of the Total Payments vesting and payments with respect to any equity award that are exempt from Section 409A; and (whether payable in cash D) reduction of any payments attributable to any acceleration of vesting or not payable in cash) payments with respect to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) appliesany equity award that are exempt from Section 409A, in each case in reverse order case, beginning with payments or benefits which are to that would otherwise be paid the farthest made last in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 42 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the minimum extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the The Total Payments shall be reduced in the following order: (1) reduction of any cash severance payments otherwise payable to the Executive that are so reduced, the Company shall reduce or eliminate the Total Payments (A) by first reducing or eliminating the portion exempt from Section 409A of the Total Payments which Code; (2) reduction of any other cash payments or benefits otherwise payable to the Executive that are not payable in cash (other than that portion exempt from Section 409A of the Total Payments subject Code, but excluding any payments attributable to clause (C)), (B) then by reducing any acceleration of vesting or eliminating cash payments (other than with respect to any equity award that portion are exempt from Section 409A of the Total Payments subject Code; (3) reduction of any other payments or benefits otherwise payable to clause (C)) the Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (C4) then by reducing reduction of any payments attributable to any acceleration of vesting or eliminating the portion payments with respect to any equity award that are exempt from Section 409A of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) appliesCode, in each case in reverse order beginning with payments or benefits which are to that would otherwise be paid the farthest made last in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive you (including any payment or benefit received in connection with a termination of the Executive’s your employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 49 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, your remaining Total Payments shall be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company The reduction undertaken pursuant to this Section 10(a) shall reduce or eliminate the Total Payments (A) be accomplished first by first reducing or eliminating the portion any cash payments subject to Section 409A of the Total Payments which are not payable Code as deferred compensation (with payments to be made furthest in cash (other than that portion of the Total Payments subject to clause (C)future being reduced first), (B) then by reducing or eliminating cash payments (other than that portion are not subject to Section 409A of the Total Payments subject to clause (C)) and (C) Code, then by reducing payments attributable to equity-based compensation (or eliminating the portion accelerated vesting thereof) subject to Section 409A of the Total Payments Code as deferred compensation (whether payable with payments to be made furthest in cash the future being reduced first), and finally, by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) that is not payable in cash) subject to Section 409A of the Code; provided that all payments to which Treasury Regulation § 1.280G-1 Q/A 24(cTreas. Reg. §1.280G-1, Q&A-24(b) or (c) does not apply shall be reduced or successor theretoeliminated before any payments to which Treas. Reg. §1.280G-1, Q&A-24(b) or (c) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 44 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the The Total Payments are so reduced, shall be reduced in the Company shall reduce or eliminate the Total Payments following order: (A) by first reducing or eliminating reduction of any cash severance payments otherwise payable to the portion Executive that are exempt from Section 409A of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)), Code; (B) then by reducing or eliminating reduction of any other cash payments (other than or benefits otherwise payable to the Executive that portion are exempt from Section 409A of the Total Payments subject Code, but excluding any payments attributable to clause (C)) and any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) then by reducing reduction of any other payments or eliminating benefits otherwise payable to the portion Executive on a pro-rata basis or such other manner that complies with Section 409A of the Total Payments Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (whether payable in cash D) reduction of any payments attributable to any acceleration of vesting or not payable in cash) payments with respect to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) appliesany equity award that are exempt from Section 409A of the Code, in each case in reverse order beginning with payments or benefits which are to that would otherwise be paid the farthest made last in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive you (including any payment or benefit received in connection with a termination of the Executive’s your employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 48 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, your remaining Total Payments shall be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company The reduction undertaken pursuant to this Section 9(a) shall reduce or eliminate the Total Payments (A) be accomplished first by first reducing or eliminating the portion any cash payments subject to Section 409A of the Total Payments which are not payable Code as deferred compensation (with payments to be made furthest in cash (other than that portion of the Total Payments subject to clause (C)future being reduced first), (B) then by reducing or eliminating cash payments (other than that portion are not subject to Section 409A of the Total Payments subject to clause (C)) and (C) Code, then by reducing payments attributable to equity-based compensation (or eliminating the portion accelerated vesting thereof) subject to Section 409A of the Total Payments Code as deferred compensation (whether payable with payments to be made furthest in cash or not payable in cash) the future being reduced first), and finally, by reducing payments attributable to which Treasury Regulation § 1.280G-1 Q/A 24(c) equity-based compensation (or successor theretothe accelerated vesting thereof) applies, in each case in reverse order beginning with payments or benefits which are that is not subject to be paid Section 409A of the farthest in timeCode.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive you (including any payment or benefit received in connection with a termination of the Executive’s your employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 46 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, your remaining Total Payments shall be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company The reduction undertaken pursuant to this Section 7(a) shall reduce or eliminate the Total Payments (A) be accomplished first by first reducing or eliminating the portion any cash payments subject to Section 409A of the Total Payments which are not payable Code as deferred compensation (with payments to be made furthest in cash (other than that portion of the Total Payments subject to clause (C)future being reduced first), (B) then by reducing or eliminating cash payments (other than that portion are not subject to Section 409A of the Total Payments subject to clause (C)) and (C) Code, then by reducing payments attributable to equity-based compensation (or eliminating the portion accelerated vesting thereof) subject to Section 409A of the Total Payments Code as deferred compensation (whether payable with payments to be made furthest in cash or not payable in cash) the future being reduced first), and finally, by reducing payments attributable to which Treasury Regulation § 1.280G-1 Q/A 24(c) equity-based compensation (or successor theretothe accelerated vesting thereof) applies, in each case in reverse order beginning with payments or benefits which are that is not subject to be paid Section 409A of the farthest in timeCode.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 44 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, the Total Payments shall be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes and employment taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Executive shall have a right to review and provide comment on the foregoing calculations. If the Total Payments are so reduced, the Company shall reduce or eliminate the Total Payments (A) by first reducing or eliminating the portion of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)) hereof), (B) then by reducing or eliminating cash payments (other than that portion of the Total Payments subject to clause (C)) hereof) and (C) then by reducing or eliminating the portion of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time. Notwithstanding the foregoing, in the event the Company then constitutes an entity described under Section 280G(b)(5)(A) of the Code, the Company and the Executive will confer to determine whether to agree to seek to take such actions as may be necessary such that the exemption under Section 280G(b)(5) of the Code would apply to reduce or eliminate the amount of the Total Payments that would constitute “parachute payments” for purposes of Section 280G of the Code and the regulations issued thereunder.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive Employee (including any payment or benefit received in connection with a termination of the ExecutiveEmployee’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4set forth in Exhibit A of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax (“Excise Tax”) imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise TaxCode”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, Employee’s remaining Total Payments shall be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company The reduction undertaken pursuant to this Section 5(a) shall reduce or eliminate the Total Payments (A) be accomplished first by first reducing or eliminating the portion any cash payments subject to Section 409A of the Total Payments which are not payable Code as deferred compensation (with payments to be made furthest in cash (other than that portion of the Total Payments subject to clause (C)future being reduced first), (B) then by reducing or eliminating cash payments (other than that portion are not subject to Section 409A of the Total Payments subject to clause (C)) and (C) Code, then by reducing payments attributable to equity-based compensation (or eliminating the portion accelerated vesting thereof) subject to Section 409A of the Total Payments Code as deferred compensation (whether payable with payments to be made furthest in cash the future being reduced first), and finally, by reducing payments attributable to equity-based compensation (or the accelerated vesting thereof) that is not payable in cash) subject to Section 409A of the Code; provided that all payments to which Treasury Regulation § 1.280G-1 Q/A 24(cTreas. Reg. §1.280G-1, Q&A-24(b) or (c) does not apply shall be reduced or successor theretoeliminated before any payments to which Treas. Reg. §1.280G-1, Q&A-24(b) or (c) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 44 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, the Total Payments shall be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company shall reduce or eliminate the Total Payments (A) by first reducing or eliminating the portion of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)) hereof), (B) then by reducing or eliminating cash payments (other than that portion of the Total Payments subject to clause (C)) hereof) and (C) then by reducing or eliminating the portion of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time.. Employment Agreement – C▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 4

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 44 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, the Total Payments shall be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes and employment taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company shall reduce or eliminate the Total Payments (A) by first reducing or eliminating the portion of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)) hereof), (B) then by reducing or eliminating cash payments (other than that portion of the Total Payments subject to clause (C)) hereof) and (C) then by reducing or eliminating the portion of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 43(e) hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes and employment taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If In all cases, if there are any reductions to the Total Payments are so reducedunder this paragraph, the Company reduction shall reduce or eliminate be performed in a manner which results in the Total Payments (A) greatest after-tax amount being retained by first reducing or eliminating the portion of the Total Payments Executive and in manner which are not payable in cash (other than that portion of the Total Payments subject to clause (C)), (B) then by reducing or eliminating cash payments (other than that portion of the Total Payments subject to clause (C)) and (C) then by reducing or eliminating the portion of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning comports with payments or benefits which are to be paid the farthest in time.Section 409A.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 44 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, the Total Payments shall be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Executive shall have a right to review and provide comment on the foregoing calculations. If the Total Payments are so reduced, the Company shall reduce or eliminate the Total Payments (A) by first reducing or eliminating the portion of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)) hereof), (B) then by reducing or eliminating cash payments (other than that portion of the Total Payments subject to clause (C)) hereof) and (C) then by reducing or eliminating the portion of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time.

Best Pay Cap. Notwithstanding any other provision of this Agreement, if in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 45 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the The Total Payments are so reduced, shall be reduced in the Company shall reduce or eliminate the Total Payments following order: (A) by first reducing or eliminating reduction of any cash severance payments otherwise payable to the portion Executive that are exempt from Section 409A of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)), Code; (B) then by reducing or eliminating reduction of any other cash payments (other than or benefits otherwise payable to the Executive that portion are exempt from Section 409A of the Total Payments subject Code, but excluding any payments attributable to clause (C)) and any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) then by reducing reduction of any other payments or eliminating benefits otherwise payable to the portion Executive on a pro-rata basis or such other manner that complies with Section 409A of the Total Payments Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (whether payable in cash D) reduction of any payments attributable to any acceleration of vesting or not payable in cash) payments with respect to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) appliesany equity award that are exempt from Section 409A of the Code, in each case in reverse order beginning with payments or benefits which are to that would otherwise be paid the farthest made last in time.