If any payment or benefit Executive would receive under this Agreement, when combined with any other payment or benefit Executive receives pursuant to a Change of Control (for purposes of this section, a “Payment”) would: # constitute a “parachute payment” within the meaning of [Section 280G] the Code; and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either: # the full amount of such Payment; or # such lesser amount (with cash payments being reduced before stock option compensation) as would result in no portion of the Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employments taxes, income taxes, and the Excise Tax, results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax.

If any payment or benefit Executive would receive under this Agreement, when combined with any other payment or benefit Executive receives pursuant to the termination of Executive’s employment with the Company and its Affiliates (“Payment”), would # constitute a “parachute payment” within the meaning of Section 280G of the Code, and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either # the full amount of such Payment or # such lesser amount (with cash payments being reduced before stock option compensation) as would result in no portion of the Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes, and the Excise Tax, results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax.

Parachute Payments. If any payment or benefit (including payments and benefits pursuant to this Agreement) that Executive would receive in connection with a Change in Control from the Company or other event that constitutes a change in ownership or control within the meaning of Section 280G of the Code and the regulations thereunder (in either case, a “[[Unknown Identifier]] Event” and any such payment or benefit, a “Transaction Payment”) would # constitute a “parachute payment” within the meaning of Section 280G of the Code, and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Transaction Payment are paid to Executive, which of the following two alternative forms of payment would result in Executive’s receipt, on an after-tax basis, of the greater amount of Transaction Payments notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: # payment in full of the entire amount of the Transaction Payments (a “Full Payment”), or # payment of only a portion of the Transaction Payments so that Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account all applicable federal, state, local and foreign 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, # Executive shall have no rights to any additional payments and/or benefits constituting the forfeited portion of the Full Payment, and # reduction in payments and/or benefits will occur in the manner that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. Notwithstanding the foregoing, if such reduction would result in any portion of the Transaction Payments being subject to penalties pursuant to Section 409A of the Code that would not otherwise be subject to such penalties, then the reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A of the Code as follows: # Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and # Transaction Payments that are “deferred compensation” within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A of the Code. In the event that acceleration of vesting of any equity compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision.

Best After Tax. If any payment or benefit Executive would receive pursuant to a Change in Control from the Company or otherwise (“Payment”) would # constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either # the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or # the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments and/or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: reduction of current cash payments; reduction of deferred cash payments subject to Code Section 409A; cancellation of accelerated vesting of stock options; cancellation of accelerated vesting of stock awards other than stock options; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Executive’s stock awards.

In the event that any payment received or to be received by the Executive in connection with a Change in Control of the Company or the termination of the Executive’s employment (whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a change in control of the Company or any person affiliated with the Company or such person (together with the Severance Payment, the “Total Payments”, and each a “Payment”)) would be treated as “parachute payments” under Section 280G of the Code and would, but for this section, be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any corresponding provisions of state or local tax laws, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, is hereinafter collectively referred to as (the “Excise Tax”)), then prior to making any Total Payments, a calculation shall be made comparing # the Net Benefit (as defined below) to the Executive of the Total Payments after payment of the Excise Tax, to # the Net Benefit to the Executive if the Total Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under # above is less than the amount under # above will the Total Payments be reduced to the minimum extent necessary to ensure that no portion of the Total Payments is subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value of the Total Payments net of all federal, state, local, foreign income, employment and excise taxes. The reduction of the amounts payable under this Agreement, if applicable, shall be made by reducing taxable payments before non-taxable payments, and payments nearest in time before payments later in time, unless an alternative method of reduction is elected by the Executive to the extent consistent with Section 409A of the Code. For purposes of reducing the Total Payments to the Reduced Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced.

In the event that any payment or benefit received or to be received by Executive pursuant to this Agreement, pursuant to another compensation or benefit program or otherwise (“Payments”) would # constitute a “parachute payment” within the meaning of Section 280G of the Code and # but for this Section 13, be subject to the excise tax imposed by Section 4999 of the Code (“Excise Tax”), then such Payments shall either be # provided in full pursuant to the terms of this Agreement and any other plan, program or applicable agreement, or # provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax.

Certain Change in Control Payments. Notwithstanding any provision of this Agreement to the contrary, if any payments or benefits the Executive would receive from the Company under this Agreement or otherwise in connection with the Change in Control (the “Total Payments”) # constitute “parachute payments” within the meaning of Section 280G of the Code, and # but for this Section 27, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive will be entitled to receive either # the full amount of the Total Payments or # a portion of the Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is defined in [Section 280G(b)(3)(A)] of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by such employee on an after-tax basis, of the greatest portion of the Total Payments. Any determination required under this Section 27 shall be made in writing by the accountant or tax counsel selected by the Executive. If there is a reduction pursuant to this Section 27 of the Total Payments to be delivered to the applicable Executive and to the extent that an ordering of the reduction other than by the Executive is required by [Section 22] or other tax requirements, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the same time of payment, such “parachute payments” shall be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Section 280G of the Code and the denominator of which is the actual present value of such payment.

General. In the event that the payments and benefits (the “Payments”) paid or provided to Executive under this Agreement or otherwise # constitute “parachute payments” within the meaning of Section 280G of the Code (“[Section 280G]”), and # but for this Section 8, would be subject to the excise tax imposed by Section 4999 of the Code (“[Section 4999]”), then the Payments shall be either # delivered in full, or # delivered as to such lesser extent which would result in no portion of the Payments being subject to excise tax under [Section 4999], whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by [Section 4999], results in the receipt by Executive on an after-tax basis, of the greatest amount of the Payments, notwithstanding that all or some portion of the Payments may be taxable under [Section 4999]. The provisions of this Section 8 shall apply if, at the time of any change in ownership or control of the Company (within the meaning of [Section 280G]), the Company is an entity whose stock is readily tradable on an established securities market (or otherwise), within the meaning of [Section 280G].

Notwithstanding the foregoing, if the Company is privately held as of immediately prior to a Change in Control and it is deemed necessary by the Company to avoid any potential imposition of the adverse tax results provided for by Sections 280G and 4999 of the Code, then as a further condition to any payment or benefit provided for in this Agreement or otherwise, the Company may request Executive to consider in good faith submitting any payment or benefit provided for in this Agreement or from any other source that the Company reasonably determines may constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) for approval by the Company’s stockholders prior to the closing of the Change in Control in the manner required by the terms of [Section 280G(b)(5)(B)] of the Code, so that no payments or benefits will be deemed to constitute a “parachute payment” subject to the excise taxes under Sections 280G and 4999 of the Code.

#280G Provisions. Notwithstanding anything in this Agreement to the contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise (“Payment”) would # constitute a “parachute payment” within the meaning of Section 280G of the Code, and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall either be # delivered in full, or # delivered as to such lesser extent which would result in no portion of such Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the largest payment, notwithstanding that all or some portion of the Payment may be taxable under Section 4999 of the Code. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in payments and/or benefits pursuant to this Section 4.2 will occur in the following order: # reduction of cash payments; # cancellation of accelerated vesting of equity awards other than stock options; # cancellation of accelerated vesting of stock options; and # reduction of other benefits payable to Executive.