Common use of Section 280G of the Code Clause in Contracts

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrary, if the Executive would receive (i) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code.

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrary, if the Executive would receive (ia) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (iib) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee Executive without Employeethe Executive’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment under Section 8(a)(ii) shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonusany COBRA Reimbursements or Alternative Payments under Section 8(a)(iii); (ii) any the continuation vesting of medical benefits, the Unvested Shares under Section 8(a)(iv); and (iii) the Unvested RSU Bonus Shares and (iv) the Accrued ObligationsObligations under Section 8(a)(i). For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change change in Control control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code.

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrarycontrary contained herein (or any other agreement entered into by and between Executive and the Company or any incentive arrangement or plan offered by the Company), if in the event that any amount or benefit paid or distributed to Executive would receive (i) any paymentpursuant to this Agreement, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, taken together with any other payment, deemed payment amounts or other benefit benefits otherwise paid to Executive by the Executive may receive under any other plan, program, policy or arrangement Company (collectively with the payments under Section 8 and 9 hereofcollectively, the “Covered Payments”), would constitute an “excess parachute payment” under section as defined in Section 280G of the Code that Code, and would be or become thereby subject Executive to the an excise tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed(an “Excise Tax”), and the provisions of this Section 10 shall apply. If the aggregate present value (iias determined for purposes of Section 280G of the Code) a greater net after-tax benefit by limiting of the Covered Payments so that exceeds the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could which can be paid to the Employee Executive without Employee’s being subject to any Executive incurring an Excise Tax (the “Safe Harbor Amount”)Tax, then the Covered Payments amounts payable to Executive under this Agreement (or any other agreement by and between Executive and the Executive Company or pursuant to any incentive arrangement or plan offered by the Company) shall be reduced (but not below zero) so that to the aggregate maximum amount of parachute which may be paid hereunder without Executive becoming subject to the Excise Tax (such reduced payments that to be referred to as the Executive receives does not exceed the Safe Harbor Amount“Payment Cap”). In the event that the Executive receives reduced payments and benefits hereunderas a result of application of this Section 10, such Executive shall have the right to designate which of the payments and benefits otherwise set forth herein (or any other agreement between the Company and Executive or any incentive arrangement or plan offered by the Company) shall be reduced received in connection with the application of the Safe Harbor Amount in the following manner: firstPayment Cap, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will following sentence. Reduction shall first be treated as “parachute payments” within the meaning made from payments and benefits which are determined not to be nonqualified deferred compensation for purposes of Section 280G 409A of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) then shall be treated as subject to the Excise Tax, unless, and except made (to the extent that, in the good faith judgment necessary) out of a public accounting firm appointed by the Company prior payments and benefits that are subject to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) 409A of the Code) in excess of Code and that are due at the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Codelatest future date.

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrarycontrary contained herein (or any other agreement entered into by and between Executive and the Company or any incentive arrangement or plan offered by the Parent or Company), if in the event that any amount or benefit paid or distributed to Executive would receive (i) any paymentpursuant to this Agreement, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, taken together with any other payment, deemed payment amounts or other benefit benefits otherwise paid to Executive by the Executive may receive under any other plan, program, policy Parent or arrangement Company (collectively with the payments under Section 8 and 9 hereofcollectively, the “Covered Payments”), would constitute an “excess parachute payment” under section as defined in Section 280G of the Code that Code, and would be or become thereby subject Executive to the an excise tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed(an “Excise Tax”), and the provisions of this Section 10 shall apply. If the aggregate present value (iias determined for purposes of Section 280G of the Code) a greater net after-tax benefit by limiting of the Covered Payments so that exceeds the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could which can be paid to the Employee Executive without Employee’s being subject to any Executive incurring an Excise Tax (the “Safe Harbor Amount”)Tax, then the Covered Payments amounts payable to Executive under this Agreement (or any other agreement by and between Executive, the Executive Parent, and/or the Company or pursuant to any incentive arrangement or plan offered by the Parent or Company) shall be reduced (but not below zero) so that to the aggregate maximum amount of parachute which may be paid hereunder without Executive becoming subject to the Excise Tax (such reduced payments that to be referred to as the Executive receives does not exceed the Safe Harbor Amount“Payment Cap”). In the event that the Executive receives reduced payments and benefits hereunderas a result of application of this Section 10, such Executive shall have the right to designate which of the payments and benefits otherwise set forth herein (or any other agreement between the Parent, the Company and/or Executive or any incentive arrangement or plan offered by the Parent or Company) shall be reduced received in connection with the application of the Safe Harbor Amount in the following manner: firstPayment Cap, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will following sentence. Reduction shall first be treated as “parachute payments” within the meaning made from payments and benefits which are determined not to be nonqualified deferred compensation for purposes of Section 280G 409A of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) then shall be treated as subject to the Excise Tax, unless, and except made (to the extent that, in the good faith judgment necessary) out of a public accounting firm appointed by the Company prior payments and benefits that are subject to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) 409A of the Code) in excess of Code and that are due at the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Codelatest future date.

Section 280G of the Code. Notwithstanding anything contained in If any payment or benefit (including payments and benefits pursuant to this Agreement to the contrary, if the Executive Agreement) that you would receive in connection with a Change in Control from the Company or otherwise (“Transaction Payment”) would (i) any payment, deemed payment or other benefit as constitute a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Internal Revenue Code (the “Code”), and all “parachute payments” in excess (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “base amount” (as defined under Section 280G(b)(3) Excise Tax”), then the Company shall cause to be determined, before any amounts of the Code) shall Transaction Payment are paid to you, which of the following two alternative forms of payment would result in your receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be treated as subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), unlessor (2) payment of only a part of the Transaction Payment so that you receive the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (x) you shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and except to the extent that, (y) reduction in payments and/or benefits shall occur in the good faith judgment manner that results in the greatest economic benefit to you as determined in this paragraph. If more than one method of a public accounting firm appointed reduction will result in the same economic benefit, the portions of the Transaction Payment shall be reduced pro rata. Unless you and the Company otherwise agree in writing, any determination required under this paragraph shall be made in writing by the Company prior to the Change in Control or tax counsel selected by such accounting firm Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company has a for all purposes. For purposes of making the calculations required by this paragraph, the Accountants may make reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the meaning application of Section 280G(b)(4)(B) Sections 280G and 4999 of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, . You and the value of any non-cash benefits or any deferred payment or benefit Company shall be determined by furnish to the Accountants such information and documents as the Accountants may reasonably request in accordance order to make a determination under this paragraph. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this paragraph as well as any costs incurred by you with the principles of Section Accountants for tax planning under Sections 280G and 4999 of the Code.

Section 280G of the Code. Notwithstanding anything contained any other provision in this Agreement to the contrary, if the Executive would receive (i) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other paymentagreement, deemed payment contract, or other benefit understanding entered into by the Executive may receive under any other plan, program, policy or arrangement (collectively Employee with the payments under Section 8 and 9 hereofCompany or any of its subsidiaries, in the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of event that it is determined by the Code reasonable computation by a nationally recognized certified public accounting firm that would shall be or become subject to selected by the tax Company (the “Excise TaxAccountant”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments the payments, distributions, benefits and entitlements of any type payable by the Company or any subsidiary to or for the Employee’s benefit under this Agreement or any other formal or informal plan or other arrangement, contract or understanding (including any payment, distribution, benefit or entitlement made by any person or entity effecting a change of control), in each case, that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall could be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as considered “parachute payments” within the meaning of Section 280G of the CodeCode (such payments, and all the “parachute payments” in excess Parachute Payments”) that, but for this Section 7 would be payable to the Employee, exceeds the greatest amount of Parachute Payments that could be paid to the Employee without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), then the aggregate amount of Parachute Payments payable to the Employee shall not exceed the amount which produces the greatest after-tax benefit to the Employee after taking into account any Excise Tax to be payable by the Employee. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Employee, if doing so would place the Employee in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Company has a reasonable basis to conclude that such Covered shall reduce or eliminate the Parachute Payments (in whole by first reducing or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within eliminating the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” Parachute Payments that are payable in cash and then by reducing or such “parachute payments” are otherwise not subject to such Excise Tax, and eliminating the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G portion of the CodeParachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Accountant’s determination.

Section 280G of the Code. (a) Notwithstanding anything contained in this Agreement to the contrary, if the Executive would receive (i) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In in the event that any severance and other benefits provided to or for the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application benefit of the Safe Harbor Amount in Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the following manner: firstRelated Parties (this Agreement and such other agreements, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iiiplans, and policies collectively being referred to herein as the “Change of Control Arrangements”) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as constitute “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3280G(b)(2) of the CodeCode (such severance and other benefits being referred to herein as the “Change of Control Payments”) shall that would be treated as subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change in Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, unless(2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and except to (3) the extent that, in the good faith judgment of a public accounting firm appointed estimated hospital insurance taxes payable by the Company prior to Employee on the Change in Control or difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax counsel selected by such accounting firm rate under Section 3101(b) of the Code (the “AccountantsNet Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Company has a reasonable basis Employee shall be entitled to conclude that such Covered receive or commence to receive the Change of Control Payments (in whole equal to the Capped Amount; or in part) either do not constitute “parachute payments” if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or represent reasonable compensation commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) payment of the Code) in excess Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the allocable portion of the “base amount,” or Related Parties as reimbursement for such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Codetaxes.

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrarycontrary contained herein (or any other agreement entered into by and between Executive and the Company or any incentive arrangement or plan offered by the Company), if in the event that any amount or benefit paid or distributed to Executive would receive (i) any paymentpursuant to this Agreement, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, taken together with any other payment, deemed payment amounts or other benefit benefits otherwise paid to Executive by the Executive may receive under any other plan, program, policy or arrangement Company (collectively with the payments under Section 8 and 9 hereofcollectively, the “Covered Payments”), would constitute an “excess parachute payment” under section as defined in Section 280G of the Code that Code, and would be or become thereby subject Executive to the an excise tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed(an “Excise Tax”), and the provisions of this Section 8 shall apply. If the aggregate present value (iias determined for purposes of Section 280G of the Code) a greater net after-tax benefit by limiting of the Covered Payments so that exceeds the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could which can be paid to the Employee Executive without Employee’s being subject to any Executive incurring an Excise Tax (the “Safe Harbor Amount”)Tax, then the Covered Payments amounts payable to Executive under this Agreement (or any other agreement by and between Executive and the Executive Company or pursuant to any incentive arrangement or plan offered by the Company) shall be reduced (but not below zero) so that to the aggregate maximum amount of parachute which may be paid hereunder without Executive becoming subject to the Excise Tax (such reduced payments that to be referred to as the Executive receives does not exceed the Safe Harbor Amount“Payment Cap”). In the event that the Executive receives reduced payments and benefits hereunderas a result of application of this Section 8, such Executive shall have the right to designate which of the payments and benefits otherwise set forth herein (or any other agreement between the Company and Executive or any incentive arrangement or plan offered by the Company) shall be reduced received in connection with the application of the Safe Harbor Amount in the following manner: firstPayment Cap, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will following sentence. Reduction shall first be treated as “parachute payments” within the meaning made from payments and benefits which are determined not to be nonqualified deferred compensation for purposes of Section 280G 409A of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) then shall be treated as subject to the Excise Tax, unless, and except made (to the extent that, in the good faith judgment necessary) out of a public accounting firm appointed by the Company prior payments and benefits that are subject to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) 409A of the Code) in excess of Code and that are due at the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Codelatest future date.

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrary, if the Executive would receive (ia) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof thatunder this Agreement, that together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (iib) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof ​ that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee Executive without Employeethe Executive’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in a manner determined by the following manner: Board in a manner that complies with Section 409A that first reduces any payments or benefits that are valued at full value under the applicable provisions of Section 280G, with the latest in time payments or benefits reduced first, and then reducing any payments or benefits that are valued at less than full value under the Executive’s Severance Payment shall be reducedapplicable provisions of Section 280G, followed by, to with the extent necessary and latest in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligationstime payments or benefits reduced first. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change change in Control control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code.

Section 280G of the Code. Notwithstanding Pursuant to Section 4(e), Section 3 of the Change in Control Agreement shall govern in lieu of this Section 11 in respect of a termination of the Executive’s employment which is a “Covered Termination” (as defined in the Change in Control Agreement). Otherwise, with respect to any amount or benefit under this Agreement, including with respect to any other termination, notwithstanding anything contained in this Agreement to the contrary, if the Executive any amount or benefit to be paid or provided under this Agreement would receive (i) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute be an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute paymentsExcess Parachute Payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the last sentence of this Section 11 to be paid or provided under this Agreement will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that no such reduction shall be made if it is not thereby possible to eliminate all “parachute payments” Excess Parachute Payments under this Agreement; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in excess of an increase in the “base amount” aggregate payment and benefits to be provided, determined on an after-tax basis (as defined under taking into account the excise tax imposed pursuant to Section 280G(b)(3) 4999 of the Code) shall , or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by Executive or the Company, the determination of whether any reduction in such payments or benefits to be treated as subject provided under this Agreement or otherwise is required pursuant to the Excise Taxpreceding sentence will be made at the expense of the Company by the Company’s independent accountants. The fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 11 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 11, unlessthe Company will reduce the Executive’s payment and/or benefits, and except to the extent thatrequired, in the good faith judgment following order: (i) the lump sum payment provided under Section 4(a)(ii); (ii) the accelerated vesting of a public accounting firm appointed by equity-based awards described in Section 4(a)(iii)(C) (including the corresponding Company prior equity-based awards, pursuant to Section 4(a)(iii)(D)); (iii) the Change accelerated vesting of equity-based awards described in Control or tax counsel selected by such accounting firm Section 4(a)(iii)(A) (including the “Accountants”corresponding Company equity-based awards, pursuant to Section 4(a)(iii)(D)); and (iv) the accelerated vesting of equity-based awards described in Section 4(a)(iii)(B) (including the corresponding Company equity-based awards, the Company has a reasonable basis pursuant to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code4(a)(iii)(D)).

Section 280G of the Code. Notwithstanding anything contained in this Agreement In the event that any payments, distributions, benefits or entitlements of any type payable to the contraryExecutive, if the Executive would receive whether or not payable upon a separation of Executive’s employment (i) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as constitute “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess (ii) but for this paragraph 22 would be subject to the excise tax imposed by Section 4999 of the Code (the “base amount” Excise Tax”), then the Payments shall be reduced to such lesser amount (as defined under Section 280G(b)(3the “Reduced Amount”) that would result in no portion of the Code) shall be treated as Payments being subject to the Excise Tax; provided, unlesshowever, and except to that such Payments shall not be so reduced if a nationally recognized accounting firm selected by the extent that, Corporation in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”)) determines that without such reduction Executive would be entitled to receive and retain, the Company has on a reasonable net after-tax basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of including, without limitation, any excise taxes payable under Section 280G(b)(4)(B) 4999 of the Code) in excess , federal, state and local income taxes, social security and Medicare taxes and all other applicable taxes, determined by applying the highest marginal rate under Section 1 of the allocable portion of Code and under state and local tax laws which applied (or is likely to apply) to Executive’s taxable income for the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and tax year in which the value of any non-cash benefits or any deferred payment or benefit shall be determined by transaction which causes the Accountants in accordance with the principles application of Section 280G of the Code occurs, or such other rate(s) as the Accountants determine to be likely to apply to Executive in the relevant tax year(s) in which any of the Payments are expected to be made), an amount that is greater than the amount, on a net after-tax basis, that Executive would be entitled to retain upon receipt of the Reduced Amount. Unless the Corporation and Executive otherwise agree in writing, any determination required under this paragraph 22 shall be made in good faith by the Accountants in a timely manner and shall be binding on the parties absent manifest error. In the event of a reduction of Payments hereunder, the Payments shall be reduced in the order determined by the Accountants that results in the greatest economic benefit to Executive in a manner that would not result in subjecting Executive to additional taxation under Section 409A. For purposes of making the calculations required by this paragraph 22, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code., and other applicable legal authority. The Corporation and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this paragraph 22, and the Corporation shall bear the cost of all fees charged by the Accountants in connection with any calculations contemplated by this paragraph 22. To the extent requested by Executive, the Corporation shall cooperate with Executive in good faith in valuing, and the Accountants shall value, services to be provided by Executive (including Executive refraining from performing services pursuant to a covenant not to compete) before, on or after the date of the transaction which causes the application of Section 280G of the Code such that Payments in respect of such services may be considered to be “reasonable compensation” within the meaning of the regulations under Section 280G of the Code. Notwithstanding the foregoing, if the transaction which causes the application of Section 280G of the Code occurs at a time during which the Corporation qualifies under Section 2(a)(i) of Q&A-6 of Treasury Regulation Section 1.280G, upon the request of Executive, the Corporation shall use reasonable efforts to obtain the vote of equity holders described in Q&A-7 of Treasury Regulation Section 1.280G.

Section 280G of the Code. (A) Notwithstanding anything to the contrary contained in this Agreement to or any other agreement between Employee and the contraryCompany or any of its Affiliates, if the Executive any payment or benefit Employee would receive (i) from the Company or any paymentof its Affiliates, deemed payment whether pursuant to this Agreement or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”)otherwise, would constitute an a “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the a “Excise TaxParachute Payment”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess then if reducing the amount of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Taxsuch payment or benefit, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part, would result, after taking into account all applicable federal, state and local employment taxes, income taxes and any excise tax that are, and that would otherwise have been, payable, in Employee’s receipt of a greater net after-tax amount than Employee would otherwise have received on a net-after tax basis had the payment or benefit been made in full, then such payment or benefit shall be reduced to the amount (the “Reduced Amount”) either do that results in Employee receiving the greatest net-after tax amount from such payment or benefit, notwithstanding that all or some portion of the payment or benefit may be subject to the excise tax. If any payment or benefit is to be reduced to the Reduced Amount, any reduction therein shall occur in the following order: (x) cash payments shall be reduced first and in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to be reduced; (y) accelerated vesting of stock awards shall be cancelled/reduced next and in the reverse order of the date of grant for such stock awards; and (z) employee benefits shall be reduced last and in reverse chronological order; provided that within any category of payments and benefits (that is, clause (x), (y) or (z) above), a reduction will occur first with respect to amounts that are not constitute “parachute paymentsdeferred compensation” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) 409A of the Code) in excess of the allocable portion of the Code prior to amounts that are “base amount,” or such deferred compensation”. As used herein, “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code.

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrary, if the Executive would receive (i) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code.parachute

Section 280G of the Code. Notwithstanding anything contained any other provision in this Agreement to the contraryor any other agreement, if the contract, or understanding entered into by Executive would receive (i) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other paymentAtlas Company, deemed payment or other benefit in the Executive may receive under any other plan, program, policy or arrangement (collectively with event that it is determined by the payments under Section 8 and 9 hereof, reasonable computation by a nationally recognized certified public accounting firm that shall be selected by the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax Company (the “Excise TaxAccountant”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments payments, distributions, benefits and benefits hereunder, such payments and benefits shall be reduced in connection with the application entitlements of the Safe Harbor Amount in the following manner: first, the any type payable by any Atlas Company to or for Executive’s Severance Payment shall benefit under this Agreement or any other formal or informal plan or other arrangement, contract or understanding (including any payment, distribution, benefit or entitlement made by any person or entity effecting a change of control), in each case, that could be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as considered “parachute payments” within the meaning of Section 280G of the CodeCode (such payments, and all the “parachute payments” in excess Parachute Payments”) that, but for this Section 8(d), would be payable to Executive, exceeds the greatest amount of Parachute Payments that could be paid to Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), then the aggregate amount of Parachute Payments payable to [[5206304]] Executive shall not exceed the amount which produces the greatest after-tax benefit to Executive after taking into account any Excise Tax to be payable by Executive. For the avoidance of doubt, this provision shall reduce the amount of Parachute Payments otherwise payable to Executive only if doing so would place Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments and after taking into account amounts determined by the Accountant that could mitigate the Parachute Payments, including, but not limited to, determining the value of non-compete and other restrictive provisions and other payments for services to be made after the change in control). If required, the Company has a reasonable basis to conclude that such Covered shall reduce or eliminate the Parachute Payments (in whole by first reducing or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within eliminating the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” Parachute Payments that are payable in cash and then by reducing or such “parachute payments” are otherwise not subject to such Excise Tax, and eliminating the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G portion of the CodeParachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Accountant’s determination.

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrary, if the Executive would receive (ia) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof thatunder this Agreement, that together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (iib) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee Executive without Employeethe Executive’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in a manner determined by the following manner: Board in a manner that complies with Section 409A that first reduces any payments or benefits that are valued at full value under the applicable provisions of Section 280G, with the latest in time payments or benefits reduced first, and then reducing any payments or benefits that are valued at less than full value under the Executive’s Severance Payment shall be reducedapplicable provisions of Section 280G, followed by, to with the extent necessary and latest in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligationstime payments or benefits reduced first. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change change in Control control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code.

Section 280G of the Code. Notwithstanding anything contained in any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if the Executive would receive (i) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will payments or benefits provided or to be subject provided by the Company or its affiliates to Executive or for Executive's benefit pursuant to the Excise Tax, such terms of this Agreement or otherwise (the "Covered Payments will be treated as “Payments") constitute parachute payments” payments (the "Parachute Payments") within the meaning of Section 280G of the CodeCode and, and all “parachute payments” in excess but for this Section 20, would be subject to the excise tax imposed under Section 4999 of the “base amount” Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the "Excise Tax"), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined under Section 280G(b)(3below) to Executive of the CodeCovered Payments after payment of the Excise Tax to (ii) shall be treated as the Net Benefit to Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax, unless, and except . Only if the amount calculated under subparagraph (i) above is less than the amount under subparagraph (ii) above will the Covered Payments be reduced to the minimum extent that, in necessary to ensure that no portion of the good faith judgment of a public accounting firm appointed by the Company prior Covered Payments is subject to the Change in Control or tax counsel selected by such accounting firm Excise Tax (the “Accountants”)that amount, the Company has a reasonable basis to conclude that such "Reduced Amount")."Net Benefit" shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. (a) Any such Reduced Amount shall be made in whole or in partaccordance with Section 409A and the following: (i) either the Covered Payments consisting of cash severance benefits that do not constitute “parachute payments” or represent reasonable nonqualified deferred compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise TaxSection 409A shall be reduced first, in reverse chronological order; and (ii) all other Covered Payments consisting of cash payments, and the value Covered Payments consisting of any non-cash benefits or any accelerated vesting of equity based awards to which Treas. Reg. § 1.280G-1 Q/A-24(c) does not apply, and that in either case do not constitute nonqualified deferred payment or benefit compensation subject to Section 409A, shall be determined by the Accountants reduced second, in accordance with the principles of Section 280G of the Code.reverse chronological order;

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrary, if the Executive would receive If any Person who is a “disqualified individual” (i) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, Code and all “parachute payments” in excess the Department of the “base amount” (as defined under Section 280G(b)(3Treasury regulations promulgated thereunder) of the Code) shall be treated as subject with respect to the Excise Tax, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control may receive any payment(s) or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude benefit(s) that such Covered Payments (in whole or in part) either do not could constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B280G of the Code and the Department of Treasury regulations promulgated thereunder) under Section 280G of the Code in connection with the transactions contemplated by this Agreement, then: (a) the Company shall use commercially reasonable efforts to obtain a Parachute Payment Waiver from each such “disqualified individual” and shall deliver such Parachute Payment Waiver to Acquiror; and (b) as soon as practicable following the delivery of the Parachute Payment Waivers (if any) to Acquiror, the Company shall prepare and distribute to its shareholders a disclosure statement describing all potential “parachute payments” and benefits that may be received by such disqualified individual(s) and shall submit such payments to its shareholders for approval, in each case, in accordance with the requirements of Section 280G(b)(5)(B) of the Code) in excess Code and the Department of Treasury regulations promulgated thereunder, such that, if approved by the requisite majority of the allocable portion shareholders, such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the Code (the foregoing actions, a “base amount,” 280G Vote”). No later than three (3) Business Days prior to the Closing, if Parachute Payment Waivers are obtained and a 280G Vote is required, the Company shall deliver to Acquiror evidence reasonably satisfactory to Acquiror, (i) that a 280G Vote was solicited in conformance with Section 280G of the Code, and the requisite shareholder approval was obtained with respect to any payments and/or benefits that were subject to the Company shareholder vote (the “Section 280G Approval”) or (ii) that the Section 280G Approval was not obtained and as a consequence, pursuant to the Parachute Payment Waiver, such “parachute payments” are otherwise shall be reduced accordingly so that no payment(s) or benefit(s) provided would constitute a “parachute payment” not be made or provided. The form of the Parachute Payment Waiver, and related shareholder voting, consent and disclosures to be submitted to the Company’s shareholders in connection with the 280G Vote and the calculations related to the foregoing shall be subject to advance review and approval by Acquiror, which approval shall not be unreasonably withheld. For purposes hereof, the term “Parachute Payment Waiver” means, with respect to any Person, a written agreement waiving such Excise Tax, and Person’s right to receive any “parachute payments” (within the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles meaning of Section 280G of the CodeCode and the Department of Treasury regulations promulgated thereunder) solely to the extent required to avoid the imposition of a tax under Section 4999 of the Code by virtue of the operation of Section 280G of the Code and to accept in substitution therefor the right to receive such payments only if approved by the shareholders of the Company in a manner that complies with Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder.

Section 280G of the Code. Notwithstanding anything contained Anything in this Agreement to the contrarycontrary notwithstanding, if in the Executive would receive (i) event that a Change in Control occurs and it shall be determined that any payment, deemed payment or other distribution by the Company to or for the benefit as a result of the operation Executive, whether paid or payable or distributed or distributable pursuant to the terms of Section 8 this Agreement or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement otherwise (collectively with the payments under Section 8 and 9 hereof, the “Covered Total Payments”), ) would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not otherwise exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”)) that could be received by the Executive without the imposition of an excise tax under Section 4999 of Code, then the Covered Total Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary extent, and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject only to the Excise Taxextent, such Covered Payments will be treated necessary to assure that their aggregate present value, as “parachute payments” within determined in accordance the meaning applicable provisions of Section 280G of the Code, and all “parachute payments” in excess does not exceed the greater of the following dollar amounts (the “base amount” (as defined Benefit Limit”): the Safe Harbor Amount, or 179 the greatest after-tax amount payable to the Executive after taking into account any excise tax imposed under Section 280G(b)(3) 4999 of the Code) Code on the Total Payments. All determinations to be made under this Section 12 shall be treated as subject made by an independent public accounting firm chosen by the Company (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the Excise Tax, unlessrestrictive covenants in effect for the Executive pursuant to Section 11 this Agreement, and except the amount of the Executive’s potential parachute payment under Section 280G of the Code shall reduced by the value of those restrictive covenants to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance consistent with the principles of Section 280G of the Code. All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 12 shall be borne solely by the Company. To the extent a reduction to the Total Payments is required to be made in accordance with this Section 12, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to the Executive. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to the Executive. Notwithstanding the foregoing, any reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis, but not below zero.

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrary, if the Executive would receive (i) If any payment, deemed payment benefit or other distribution of any type to or for the benefit as a result of Executive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the operation terms of Section 8 this Agreement or 9 hereof that, together with otherwise by the Company or any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement of its affiliates (collectively with the payments under Section 8 and 9 hereofcollectively, the “Covered Parachute Payments”), ) would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject Executive to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter (the “Excise Tax”), the Parachute Payments shall be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments reduced so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could the Parachute Payments (after reduction) shall be paid One Dollar ($1.00) less than the amount which would cause the Parachute Payments to be subject to the Employee without Employee’s being subject to any Excise Tax (Tax; provided that the “Safe Harbor Amount”), then the Covered Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of such reduction. For this purpose, the after-tax value of an amount shall be reduced determined taking into account all federal, state, Res-Care, Inc. DBA BrightSpring Health Services 000 X. Xxxxxxxxxxx Parkway Louisville, KY 40222 (but not below zero000) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount000-0000 xxx.XxxxxxXxxxxxXxxxxx.xxx and local income, employment and excise taxes applicable to such amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Parachute Payments will would be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning Company shall, with respect to the Parachute Payments, use its reasonable best efforts to obtain a vote satisfying the requirements of Section 280G 280(b)(5) of the Code, and all “parachute payments” in excess such that no portion of the “base amount” (as defined under Parachute Payments will be subject to such Excise Tax. In accordance with the Section 280G(b)(3) 280G regulations, any reasonable compensation for services after the date of the Codechange in ownership or control (which shall include refraining from performing services under a noncompete and/or nonsolicit agreement or similar agreement) and any such reasonable compensation shall be treated as subject excluded from the determination of Parachute Payments. Unless Executive shall have given prior written notice to the Excise Tax, unless, and except Company to the extent that, effectuate a reduction in the good faith judgment Parachute Payments, if such a reduction is required, any such notice consistent with the requirements of a public accounting firm appointed by Section 409A of the Company prior Code to avoid the Change in Control imputation of any tax, penalty or tax counsel selected by such accounting firm (the “Accountants”)interest thereunder, the Company has a reasonable basis shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the Parachute Payments to conclude be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of stock options or similar awards, then by reducing or eliminating any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such Covered Payments (in whole reduction or in part) either do not constitute “parachute payments” or represent reasonable elimination shall apply to any non-qualified deferred compensation for personal services actually rendered amounts (within the meaning of Section 280G(b)(4)(B) 409A of the Code) to the extent such reduction or elimination would accelerate or defer the timing of such payment in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise a manner that does not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance comply with the principles of Section 280G 409A of the Code.

Section 280G of the Code. Notwithstanding anything contained in If it is determined (as hereafter provided) that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right, PSU, other equity award or similar right, or the contrary, if lapse or termination of any restriction on or the Executive would receive (i) vesting or exercisability of any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement foregoing (collectively with the payments under Section 8 and 9 hereof, the a “Covered PaymentsPayment”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the excise tax (the “Excise Tax”) imposed under by Section 4999 of the Code (or any similar tax that may hereafter be imposed, and (iisuccessor provision thereto) by reason of being contingent on a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced change in connection with the application ownership or effective control of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation Company or of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any a substantial portion of the Covered Payments will be subject to assets of the Excise TaxCompany, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, if the after-tax value of all Payments to the Executive (such after-tax value to reflect the reduction for the Excise Tax and all “parachute payments” federal, state and local income, employment and other taxes on such Payments) would, in excess of the “base amount” aggregate, be less than the after-tax value to the Executive (as defined under Section 280G(b)(3reflecting a reduction for all such taxes in a like manner) of the CodeSafe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be treated as subject to the Excise Tax, unless, and except to the extent thatreduced, in the good faith judgment reverse order in which they are due to be paid commencing with the latest such payment, until the Parachute Value of a public accounting firm appointed by the Company prior all Payments paid to the Change Executive, in Control or tax counsel selected by such accounting firm the aggregate, equals the Safe Harbor Amount, and (b) if the “Accountants”), the Company has a reasonable basis reduction to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) zero of the Code) in excess cash portions of the allocable portion Payments payable under this Agreement would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the “base amount,” Payments payable to the Executive under any other agreements, policies, plans, programs, or arrangements shall be reduced, in the reverse order in which they are due to be paid commencing with the latest such “parachute payments” are otherwise not subject payment, until the Parachute Value of all Payments paid to such Excise Taxthe Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the value reduction to zero of any all cash portions of the Payments payable pursuant to this Agreement or otherwise would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash benefits or any deferred payment or benefit portions of the Payments shall be reduced, in the reverse order in which they are due to be paid commencing with the latest such payment, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by a national accounting firm selected by the Accountants Company (which may include the Company’s outside auditors) and provided to the Company and the Executive within fifteen (15) days prior to the date on which any Payment is payable to the Executive. Any dispute between the Company and the Executive with respect to the terms of this Section 27, including the calculations and determinations of such national accounting firm, shall be resolved in accordance with Section 24 hereof. The Company shall pay all costs to obtain and provide such calculations to the principles of Section 280G of Executive and the CodeCompany.

Section 280G of the Code. Notwithstanding anything contained in this Agreement At least three (3) days prior to the contraryClosing Date, if the Executive would receive Company shall seek, and use reasonable best efforts (iwhich shall not include any payment of monies or granting of any accommodation, financial or otherwise) any paymentto obtain, deemed payment or other benefit as a result waiver of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may right to receive under any other plan, program, policy or arrangement (collectively with the payments and benefits that would reasonably be expected to constitute “parachute payments” under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject (a “Parachute Payment Waiver”) from each individual whom the Company reasonably believes is, with respect to the tax Company, a “disqualified individual” (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code) such that after giving effect to all Parachute Payment Waivers, and all “parachute payments” neither the Company nor any Subsidiary thereof has made or provided, or is required to make or provide, any such payments or benefits in excess of the 299% of such individual’s “base amount” (as defined under in Section 280G(b)(3) of the Code); provided that such Parachute Payment Waiver shall not include any payments or benefits that may be made by Buyer or any of its Affiliates unless at least five (5) shall be treated as subject Business Days prior to the Excise TaxClosing, unlessBuyer provides a detailed list and copy of any agreement, and except contract or arrangement that Buyer or its Affiliates are providing or entering into on or prior to the extent Closing Date with respect to any disqualified individual in connection with the transactions contemplated hereby, along with a written description, satisfying the adequate disclosure requirements of Section 280G(b)(5)(B)(ii) of the Code, of any such agreement, contract or arrangement and amount of related “parachute payment.” Prior to the Closing, the Company shall use its reasonable best efforts (which shall not include any payment of monies or granting of any accommodation, financial or otherwise) to obtain the approval of the equityholders of the Company in accordance with Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to payments or benefits that, in the good faith judgment absence of a public accounting firm appointed the executed Parachute Payment Waivers by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”)affected disqualified individuals, the Company has a reasonable basis to conclude that such Covered Payments (in whole might otherwise result, separately or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of aggregate, in the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value payment of any non-cash benefits amount or the provision of any deferred payment or benefit shall that would not be determined deductible by the Accountants in accordance with the principles reason of Section 280G of the Code. At least three (3) days prior to soliciting Parachute Payment Waivers and equityholder approval under this Section 7.14, the Company shall provide drafts of such waivers and equityholder approval materials to Buyer for its review and comment (and shall not unreasonably omit any comments timely provided by Buyer).

Section 280G of the Code. Notwithstanding anything contained in this Agreement (a) To the extent that the Holder would otherwise be eligible to receive a payment or benefit pursuant to the contraryterms of this Agreement, if any Related Agreement or otherwise in connection with, or arising out of, the Executive would receive Holder’s employment with the Company or any Subsidiary or a change in ownership or effective control of the Company or of a subst antial portion of its assets (i) any payment, deemed such payment or other benefit as benefit, a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments“ Parachute Payment ”), would constitute an “excess parachute payment” under section 280G of that a nationally recognized United States public accounting firm selected by the Code that Company (the “ Accountants ”) determines, but for this sentence would be or become subject to the tax (the “Excise Tax”) excise ta x imposed under by Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any “ Excise Tax (the “Safe Harbor Amount”), subject to clause (c) below, then the Covered Payments Company shall pay to the Executive shall be reduced (but not below zero) so that Holder whichever of the aggregate following two alternative forms of payment would result in the Holder’s receipt, on an after - tax basis, of the greater amount of parachute payments the Parachute Payment notwithstanding that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application all or some portion of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Parachute Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will may be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G : (1) payment in full of the Code, and all “parachute payments” in excess entire amount of the “base amount” Parachute Payment (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants“ Full Payment ”), the Company has or (2) payment of only a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) part of the Code) in excess Parachute Payment so that the Holder receives the largest payment possible without the imposition of the allocable portion Excise Tax (a “ Reduced Payment ”). (b) If a Reduced Payment is necessary pursuant to clause (a), then the reduction shall occur in the following orde r: (1) cancellation of acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the “base amount,” or underlying equity; (2) reduction of cash payments (with such “parachute payments” are reduction being applied to the payments in the reverse o rder in which they would otherwise not subject to such Excise Taxbe made, and the value of any non-cash benefits or any deferred payment or benefit that is, later payments shall be determined by reduced before earlier payments); and (3) cancellation of acceleration of vesting of equity awards not covered under (1) above; provided , however , that in the Accountants event that acceleration of vesting of equity awards is to be cancelled, acceleration of vesting of full value awards shall be cancelled before acceleration of options and stock appreciation rights and within each class such acceleration of vesting shall be cancelled in accordance with the principles of Section 280G t he reverse order of the Code.grant date of such equity awards, that is, later equity awards shall be canceled before earlier equity awards; and provided , further , that to the

Section 280G of the Code. Notwithstanding anything contained in If it is determined (as hereafter provided) that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to the contrary, if the Executive would receive (i) any payment, deemed payment or other benefit as a result by reason of the operation of Section 8 or 9 hereof that, together with any other paymentagreement, deemed payment or other benefit the Executive may receive under any other policy, plan, program, policy or arrangement (collectively with arrangement, including without limitation any stock option, stock appreciation right, or similar right, or the payments under Section 8 and 9 hereof, lapse or termination of any restriction on or the “Covered Payments”), would constitute an “excess parachute payment” under section 280G vesting or exercisability of any of the Code that foregoing (a "Payment") would be or become subject to the excise tax (the “Excise Tax”) imposed under by Section 4999 of the Code (or any similar tax that may hereafter be imposed, and (iisuccessor provision thereto) by reason of being contingent on a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced change in connection with the application ownership or effective control of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation Company or of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any a substantial portion of the Covered Payments will be subject to assets of the Excise TaxCompany, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the "Excise Tax"), then, in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the reduction for the Excise Tax and all “parachute payments” federal, state and local income, employment and other taxes on such Payments) would, in excess of the “base amount” aggregate, be less than the after-tax value to the Executive (as defined under Section 280G(b)(3reflecting a reduction for all such taxes in a like manner) of the CodeSafe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be treated as subject to the Excise Tax, unless, and except to the extent thatreduced, in the good faith judgment reverse order in which they are due to be paid commencing with the latest such payment, until the Parachute Value of a public accounting firm appointed by the Company prior all Payments paid to the Change Executive, in Control or tax counsel selected by such accounting firm the aggregate, equals the Safe Harbor Amount, and (b) if the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) reduction of the Code) in excess cash portions of the allocable portion Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the “base amount,” Payments payable to the Executive under any other agreements, policies, plans, programs, or arrangements shall be reduced, in the reverse order in which they are due to be paid commencing with the latest such “parachute payments” are otherwise not subject payment, until the Parachute Value of all Payments paid to such Excise Taxthe Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the value reduction of any all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash benefits or any deferred payment or benefit portions of the Payments shall be reduced, in the reverse order in which they are due to be paid commencing with the latest such payment, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by a national accounting firm selected by the Accountants in accordance with Company (which may include the principles of Section 280G of Company's outside auditors) and provided to the CodeCompany and the Executive within fifteen days prior to the date on which any Payment is payable to the Executive, which determination shall be binding on the Company and the Executive. The Company shall pay all costs to obtain and provide such calculations to the Executive and the Company.

Section 280G of the Code. Notwithstanding anything contained Anything in this Agreement to the contrarycontrary notwithstanding, if in the Executive would receive (i) event that a Change in Control occurs and it shall be determined that any payment, deemed payment or other distribution by the Company to or for the benefit as a result of the operation Executive, whether paid or payable or distributed or distributable pursuant to the terms of Section 8 this Agreement or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement otherwise (collectively with the payments under Section 8 and 9 hereof, the “Covered Total Payments”), ) would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not otherwise exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”)) that could be received by the Executive without the imposition of an excise tax under Section 4999 of Code, then the Covered Total Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary extent, and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject only to the Excise Taxextent, such Covered Payments will be treated necessary to assure that their aggregate present value, as “parachute payments” within determined in accordance the meaning applicable provisions of Section 280G of the Code, and all “parachute payments” in excess does not exceed the greater of the following dollar amounts (the “base amount” (as defined Benefit Limit”): the Safe Harbor Amount, or the greatest after-tax amount payable to the Executive after taking into account any excise tax imposed under Section 280G(b)(3) 4999 of the Code) Code on the Total Payments. 189 All determinations to be made under this Section 12 shall be treated as subject made by an independent public accounting firm chosen by the Company (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the Excise Tax, unlessrestrictive covenants in effect for the Executive pursuant to Section 11 this Agreement, and except the amount of the Executive’s potential parachute payment under Section 280G of the Code shall reduced by the value of those restrictive covenants to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance consistent with the principles of Section 280G of the Code. All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 12 shall be borne solely by the Company. To the extent a reduction to the Total Payments is required to be made in accordance with this Section 12, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to the Executive. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to the Executive. Notwithstanding the foregoing, any reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis, but not below zero.

Section 280G of the Code. Notwithstanding anything contained Anything in this Agreement to the contrarycontrary notwithstanding, if in the Executive would receive (i) event that a Change in Control occurs and it shall be determined that any payment, deemed payment or other distribution by the Company to or for the benefit as a result of the operation Executive, whether paid or payable or distributed or distributable pursuant to the terms of Section 8 this Agreement or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement otherwise (collectively with the payments under Section 8 and 9 hereof, the “Covered Total Payments”), ) would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not otherwise exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”)) that could be received by the Executive without the imposition of an excise tax under Section 4999 of Code, then the Covered Total Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary extent, and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject only to the Excise Taxextent, such Covered Payments will be treated necessary to assure that their aggregate present value, as “parachute payments” within determined in accordance the meaning applicable provisions of Section 280G of the Code, and all “parachute payments” in excess does not exceed the greater of the following dollar amounts (the “base amount” (as defined Benefit Limit”): the Safe Harbor Amount, or the greatest after-tax amount payable to the Executive after taking into account any excise tax imposed under Section 280G(b)(3) 4999 of the Code) Code on the Total Payments. All determinations to be made under this Section 12 shall be treated as subject made by an independent public accounting firm chosen by the Company (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the Excise Tax, unlessrestrictive covenants in effect for the Executive pursuant to Section 11 this Agreement, and except the amount of the Executive’s potential parachute payment under Section 280G of the Code shall reduced by the value of those restrictive covenants to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance consistent with the principles of Section 280G of the Code. All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 12 shall be borne solely by the Company. To the extent a reduction to the Total Payments is required to be made in accordance with this Section 12, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to the Executive. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to the Executive. Notwithstanding the foregoing, any reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis, but not below zero.

Section 280G of the Code. Notwithstanding anything contained (a) Anything in this Agreement to the contrarycontrary notwithstanding, if it shall be determined that any payment or distribution by the Company or its Affiliated Companies to or for the benefit of the Executive would receive (iwhether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 9) any payment(all such payments and benefits, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with including the payments and benefits under Section 8 and 9 5 hereof, being hereinafter referred to as the “Covered Total Payments”), would constitute an “excess parachute payment” under section 280G of the Code that ) would be or become subject to the excise tax (the “Excise Tax”) imposed under by Section 4999 of the Code or any similar interest or penalties are incurred by the Executive with respect to such excise tax that may hereafter be imposed(such excise tax, together with any such interest and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (penalties, collectively the “Safe Harbor AmountExcise Tax”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunderthen, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount after taking into account any reduction in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Total Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning provided by reason of Section 280G of the CodeCode in such other plan, and all “parachute payments” arrangement or agreement, the payments under this Agreement shall be reduced in excess the order specified below, to the extent necessary so that no portion of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as Total Payments is subject to the Excise TaxTax but only if (i) the net amount of such Total Payments, unlessas so reduced (and after subtracting the net amount of federal, state and except 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 payments and benefits under this Plan shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude Executive that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of are exempt from Section 280G(b)(4)(B) 409A of the Code; (B) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value reduction of any non-other cash payments or benefits or any deferred payment or benefit shall be determined by otherwise payable to the Accountants in accordance with the principles of Executive that are exempt from Section 280G 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to 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 (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time.

Section 280G of the Code. Notwithstanding anything contained in If it is determined (as hereafter provided) that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to the contrary, if the Executive would receive (i) any payment, deemed payment or other benefit as a result by reason of the operation of Section 8 or 9 hereof that, together with any other paymentagreement, deemed payment or other benefit the Executive may receive under any other policy, plan, program, policy or arrangement arrangement, including without limitation any stock option, stock appreciation right, other equity award, or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (collectively with the payments under Section 8 and 9 hereof, the a “Covered PaymentsPayment”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the excise tax (the “Excise Tax”) imposed under by Section 4999 of the Code (or any similar tax that may hereafter be imposed, and (iisuccessor provision thereto) by reason of being contingent on a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced change in connection with the application ownership or effective control of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation Company or of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any a substantial portion of the Covered Payments will be subject to assets of the Excise TaxCompany, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then, in the event that the after-tax value of all Payments to the Executive (such after-tax value to reflect the reduction for the Excise Tax and all federal, state, and local income, employment and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to the Executive (reflecting a reduction for all “parachute payments” such taxes in excess of the “base amount” (as defined under Section 280G(b)(3a like manner) of the CodeSafe Harbor Amount, (a) the cash portions of the Payments payable to the Executive under this Agreement shall be treated as subject to the Excise Tax, unless, and except to the extent thatreduced, in the good faith judgment reverse order in which they are due to be paid commencing with the latest such payment, until the Parachute Value of a public accounting firm appointed by the Company prior all Payments paid to the Change Executive, in Control or tax counsel selected by such accounting firm the aggregate, equals the Safe Harbor Amount, and (b) if the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) reduction of the Code) in excess cash portions of the allocable portion Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the “base amount,” Payments payable to the Executive under any other agreements, policies, plans, programs, or arrangements shall be reduced, in the reverse order in which they are due to be paid commencing with the latest such “parachute payments” are otherwise not subject payment, until the Parachute Value of all Payments paid to such Excise Taxthe Executive, in the aggregate, equals the Safe Harbor Amount, and (c) if the value reduction of any all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash benefits or any deferred payment or benefit portions of the Payments shall be reduced, in the reverse order in which they are due to be paid commencing with the latest such payment, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by a national accounting firm selected by the Accountants in accordance with Company (which may include the principles of Section 280G of Company’s outside auditors) and provided to the CodeCompany and the Executive within fifteen (15) days prior to the date on which any Payment is payable to the Executive, which determination shall be binding on the Company and the Executive. The Company shall pay all costs to obtain and provide such calculations to the Executive and the Company.

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrarycontrary contained herein (or any other agreement entered into by and between Employee and the Company or any incentive arrangement or plan offered by the Parent or Company), if in the Executive would receive (i) event that any paymentamount or benefit paid or distributed to Employee pursuant to this Agreement, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, taken together with any other payment, deemed payment amounts or other benefit benefits otherwise paid to Employee by the Executive may receive under any other plan, program, policy Parent or arrangement Company (collectively with the payments under Section 8 and 9 hereofcollectively, the “Covered Payments”), would constitute an “excess parachute payment” under section as defined in Section 280G of the Code that Code, and would be or become thereby subject Employee to the an excise tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed(an “Excise Tax”), and the provisions of this Section 10 shall apply. If the aggregate present value (iias determined for purposes of Section 280G of the Code) a greater net after-tax benefit by limiting of the Covered Payments so that exceeds the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could which can be paid to the Employee without Employee’s being subject to any Employee incurring an Excise Tax (the “Safe Harbor Amount”)Tax, then the Covered Payments amounts payable to Employee under this Agreement (or any other agreement by and between Employee, the Executive Parent, and/or the Company or pursuant to any incentive arrangement or plan offered by the Parent or Company) shall be reduced (but not below zero) so that to the aggregate maximum amount of parachute which may be paid hereunder without Employee becoming subject to the Excise Tax (such reduced payments that to be referred to as the Executive receives does not exceed the Safe Harbor Amount“Payment Cap”). In the event that the Executive Employee receives reduced payments and benefits hereunderas a result of application of this Section 10, such Employee shall have the right to designate which of the payments and benefits otherwise set forth herein (or any other agreement between the Parent, the Company and/or Employee or any incentive arrangement or plan offered by the Parent or Company) shall be reduced received in connection with the application of the Safe Harbor Amount in the following manner: firstPayment Cap, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will following sentence. Reduction shall first be treated as “parachute payments” within the meaning made from payments and benefits which are determined not to be nonqualified deferred compensation for purposes of Section 280G 409A of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) then shall be treated as subject to the Excise Tax, unless, and except made (to the extent that, in the good faith judgment necessary) out of a public accounting firm appointed by the Company prior payments and benefits that are subject to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) 409A of the Code) in excess of Code and that are due at the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Codelatest future date.

Section 280G of the Code. Notwithstanding anything contained in any other provision of this Agreement to the contrary, if in the event that any payment that is either received by Executive would receive (i) or paid by Company on Executive’s behalf or any paymentproperty, deemed payment or any other benefit as a result of the operation of Section 8 provided to Executive under this Agreement or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy arrangement or arrangement agreement with Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of Company (or in the 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 with the payments under Section 8 and 9 hereof, the “Covered Company Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would will be or become subject to the tax (the “Excise Tax”) imposed under by Section 4999 of the Internal Revenue Code or (and any similar tax that may hereafter be imposedimposed by any taxing authority), and then Executive will be entitled to receive either (i) the full amount of the Company Payments, or (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Company Payments having a value equal to $1 less than three (3) times Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as such term is defined under in Section 280G(b)(3280G(b)(3)(A) of the Internal Revenue Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, local income and employment taxes and the excise tax imposed by Section 4999 of the Internal Revenue Code, results in the receipt by Executive on an after-tax basis, of the greatest portion of the Company Payments. Any determination required under this SECTION 12 shall be treated as subject to made in writing by the Excise Tax, unless, and except to the extent that, in the good faith judgment of a independent registered public accounting firm appointed at the Company’s expense, designated by the Company prior and reasonably acceptable to the Change in Control or tax counsel selected by such accounting firm Executive (the “Accountants”), whose determination shall be conclusive and binding for all purposes upon the Company has and Executive. For purposes of making any calculation required by this SECTION 12, 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 Internal Revenue Code. If there is a reasonable basis reduction of the Company Payments pursuant to conclude this SECTION 12, such reduction shall occur in the following order: (A) any cash severance payable by reference to Executive’s Base Salary or annual bonus, (B) any other cash amount payable to Executive, (C) any employee benefit valued as a “parachute payment,” and (D) acceleration of vesting of any outstanding equity award. For the avoidance of doubt, in the event that additional Company Payments are made to Executive after the application of the cutback in this SECTION 12, which additional Company Payments result in the cutback no longer being applicable, Company shall pay Executive an additional amount equal to the value of the Company Payments that were originally cutback. The Company shall determine at the end of each calendar year whether any such Covered 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 whole no event whatsoever shall Executive be entitled to a tax gross-up or other payment in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning respect of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such any Excise Tax, and interest or penalties that may be imposed on the value Company Payments by reason of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles application of Section 280G or Section 4999 of the Internal Revenue Code.

Section 280G of the Code. Notwithstanding anything contained in this Agreement to Sections 280G and 4999 of the contrary, Code may place significant tax burdens on both Executive and the Company if the total payments made to Executive would receive (i) any payment, deemed payment or other benefit as a result of the operation of due to certain change in control events described in Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be (the “Total Change in Control Payments”) equal or become subject exceed Executive’s 280G Cap. For this purpose, Executive’s “280G Cap” is equal to Executive’s average annual compensation in the five (5) calendar years preceding the calendar year in which the change in control event occurs (the “Base Period Income Amount”) times three (3). If the Total Change in Control Payments equal or exceed the 280G Cap, Section 4999 of the Code imposes a 20% excise tax (the “Excise Tax”) on all amounts in excess of one (1) times Executive’s Base Period Income Amount. In determining whether the Total Change in Control Payments will equal or exceed the 280G Cap and result in the imposition of an Excise Tax, the provisions of Sections 280G and 4999 of the Code and the applicable Treasury Regulations will control over the general provisions of this Section 18. All determinations and calculations required to implement the rules set forth in this Section 18 shall take into account all applicable federal, state, and local income taxes and employment taxes (and for purposes of such calculations, Executive shall be deemed to pay income taxes at the highest combined federal, state and local marginal tax rates for the calendar year in which the Total Change in Control Payments are to be made, less the maximum federal income tax deduction that could be obtained as a result of a deduction for state and local taxes (the “Assumed Taxes”)). (a)Subject to the “best net” exception described in Section 18(b), in order to avoid the imposition of the Excise Tax, the total payments to which Executive is entitled under this Agreement or otherwise will be reduced to the extent necessary to avoid equaling or exceeding the 280G Cap, with such reduction first applied to the cash severance payments that Executive would otherwise be entitled to receive pursuant to this Agreement and thereafter applied in a manner that will not subject Executive to tax and penalties under Section 409A of the Code. (b)If Executive’s Total Change in Control Payments minus the Excise Tax and the Assumed Taxes (payable with respect to the amount of the Total Change in Control Payments) exceeds the 280G Cap minus the Assumed Taxes (payable with respect to the amount of the 280G Cap), then the total payments to which Executive is entitled under this Agreement or otherwise will not be reduced pursuant to Section 18(a). If this “best net” exception applies, Executive shall be fully responsible for paying any Excise Tax (and income or other taxes) that may be imposed under on Executive pursuant to Section 4999 of the Code or any similar tax that may hereafter be imposedotherwise. (c)The Company will engage a law firm, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount certified public accounting firm, and/or a firm of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax reputable executive compensation consultants (the “Safe Harbor AmountConsultant”), then ) to make any necessary determinations and to perform any necessary calculations required in order to implement the Covered Payments rules set forth in this Section 18. The Consultant shall provide detailed supporting calculations to both the Company and Executive and all fees and expenses of the Consultant shall be reduced (but not below zero) so that borne by the aggregate amount of parachute payments that Company. If the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning provisions of Section 280G and 4999 of the CodeCode are repealed without succession, and all “parachute payments” in excess of the “base amount” (as defined under this Section 280G(b)(3) of the Code) 18 shall be treated as subject of no further force or effect. In addition, if this provision does not apply to the Excise TaxExecutive for whatever reason, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of this Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Codeno further force or effect.

Section 280G of the Code. Notwithstanding anything contained in this Agreement to the contrary, if the Executive would receive (ia) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (iib) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee Executive without Employeethe Executive’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment under Section 8(a)(ii) shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonusany COBRA Reimbursements or Alternative Payments under Section 8(a)(iii); (ii) any the continuation vesting of medical benefits, the Unvested Shares under Section 8(a)(iv); and (iii) the Unvested RSU Bonus Shares and (iv) the Accrued ObligationsObligations under Section 8(a)(i). For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the Change in Control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code.of

Section 280G of the Code. Notwithstanding anything contained in If any payment or benefit (including payments and benefits pursuant to this Agreement to the contrary, if the Executive Agreement) that you would receive in connection with a Change in Control from the Company or otherwise (“Transaction Payment”) would (i) any payment, deemed payment or other benefit as constitute a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iii) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Internal Revenue Code (the “Code”), and all “parachute payments” in excess (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “base amount” (as defined under Section 280G(b)(3) Excise Tax”), then the Company shall cause to be determined, before any amounts of the Code) shall Transaction Payment are paid to you, which of the following two alternative forms of payment would result in your receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be treated as subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), unlessor (2) payment of only a part of the Transaction Payment so that you receive the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (x) you shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and except to the extent that, (y) reduction in payments and/or benefits shall occur in the good faith judgment manner that results in the greatest economic benefit to you as determined in this paragraph. If more than one method of a public accounting firm appointed reduction will result in the same economic benefit, the portions of the Transaction Payment shall be reduced pro rata. Unless you and the Company otherwise agree in writing, any determination required under this paragraph shall be made in writing by the Company prior to the Change in Control or tax counsel selected by such accounting firm Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within all purposes. For purposes of making the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Taxcalculations required by this paragraph, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the principles application of Section Sections 280G and 4999 of the Code.the

Section 280G of the Code. (a) Notwithstanding anything contained in this Agreement to the contrary, if the Executive would receive (i) any payment, deemed payment or other benefit as a result of the operation of Section 8 or 9 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 and 9 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under section 280G of the Code that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (ii) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Employee without Employee’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In in the event that any severance and other benefits provided to or for the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application benefit of the Safe Harbor Amount in Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the following manner: firstRelated Parties (this Agreement and such other agreements, the Executive’s Severance Payment shall be reduced, followed by, to the extent necessary and in order, (i) the Target Cash Bonus; (ii) any the continuation of medical benefits, (iiiplans, and policies collectively being referred to herein as the “Change of Control Arrangements”) the Unvested RSU Bonus Shares and (iv) the Accrued Obligations. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as constitute “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”) shall (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be treated as subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) of the Code is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) of the Code is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change in Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, unless(2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and except to (3) the extent that, in the good faith judgment of a public accounting firm appointed estimated hospital insurance taxes payable by the Company prior to Employee on the Change in Control or difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax counsel selected by such accounting firm rate under Section 3101(b) of the Code (the “AccountantsNet Uncapped Amount”). If the Capped Amount is greater than or equal to the Net Uncapped Amount, the Company has a reasonable basis Employee shall be entitled to conclude receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Capped Amount, it shall be reduced as follows: (i) the Change of Control Payments that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable nonqualified deferred compensation for personal services actually rendered (within the meaning of subject to Section 280G(b)(4)(B) 409A of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise TaxCode shall be reduced first, and the value (ii) all other Change of any Control Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash benefits or any deferred payments and (B) payments to be made on a later payment or benefit date shall be determined by reduced before payments to be made on an earlier date. If the Accountants in accordance with Employee receives the principles of Section 280G Uncapped Payments, then the Employee shall be solely responsible for the payment of the CodeExcise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes.