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

Section 280G of the Code. (a) Notwithstanding anything in this Agreement to the contrary, if Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive will be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary will be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm or law firm of national reputation that is selected for this purpose by the Company in its sole discretion (the “280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G of the Code, the 280G Firm or the Company may retain the services of an independent valuation expert. (d) If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6 will require the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.

Section 280G of the Code. To the extent applicable, each Company Party shall (a) Notwithstanding anything in this Agreement use its reasonable commercial efforts to the contrary, if Executive secure from any Person who (i) is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) 280G of the Code) and so (ii) has a right or potential right to any payments and/or benefits in connection with the transactions contemplated by this Agreement that no could be deemed to constitute “parachute payments” pursuant to Section 280G of the Code, a waiver of all or a portion of such amounts and Person’s rights to any such payments and/or benefits, such that all remaining payments and/or benefits received by Executive will applicable to such Person shall not be subject deemed to the excise tax imposed by be “parachute payments” pursuant to Section 4999 280G of the Code or (the “Waived 280G Benefits”), and (b) paid in fullfor all such obtained waivers, whichever produces submit for approval by the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of respective Company Party’s stockholders the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuingWaived 280G Benefits, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction and in the amount manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the payments Code. No later than five (5) Business Days before the Closing Date, the Company Parties shall provide to Parent or its counsel drafts of the consent, waiver, disclosure statement and benefits provided hereunder is calculations necessary will be made applying principlesto effectuate the approval process and shall consider in good faith Parent’s comments. Prior to the Closing Date, assumptions and procedures consistent to the extent applicable, the Company Party shall deliver to Parent evidence that (x) a vote of the respective Company Party’s stockholders was received in conformance with Section 280G of the Code by an accounting firm and the regulations thereunder, or law firm of national reputation that is selected for this purpose by (y) such requisite Company Party stockholder approval has not been obtained with respect to the Company in its sole discretion (the “Waived 280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify Benefits, and, as reasonable compensation that is exempt from being a parachute payment under Section consequence, the Waived 280G of the Code, the 280G Firm Benefits have not been and shall not be paid or the Company may retain the services of an independent valuation expertprovided. (d) If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6 will require the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.

Section 280G of the Code. (a) Notwithstanding anything in this Agreement to the contrary, if the Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), ) and the payments and benefits provided for in this Agreement, together with any other payments and benefits which the Executive has the right to receive from the Company Group or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by the Executive from the Company Group and/or such person(s) will be $1.00 less than three (3) times the Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by the Executive will be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better “net after-tax position” to the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary will be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm or law firm of national reputation that is selected for this purpose by the Company in its sole discretion (the “280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G of the Code, the 280G Firm or the Company may retain the services of an independent valuation expert. (d) If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times the Executive’s base amount, then the Executive must immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6 11 will require the Company Group to be responsible for, or have any liability or obligation with respect to, the Executive’s excise tax liabilities under Section 4999 of the Code.

Section 280G of the Code. To the extent applicable, each Company Party shall (a) Notwithstanding anything in this Agreement use its reasonable commercial efforts to the contrary, if Executive secure from any Person who (i) is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) 280G of the Code) and so (ii) has a right or potential right to any payments and/or benefits in connection with the transactions contemplated by this Agreement that no could be deemed to constitute “parachute payments” pursuant to Section 280G of the Code, a waiver of all or a portion of such amounts and Person’s rights to any such payments and/or benefits, such that all remaining payments and/or benefits received by Executive will applicable to such Person shall not be subject deemed to the excise tax imposed by be “parachute payments” pursuant to Section 4999 280G of the Code or (the “Waived 280G Benefits”), and (b) paid in fullfor all such obtained waivers, whichever produces submit for approval by the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of respective Company Party’s stockholders the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuingWaived 280G Benefits, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction and in the amount manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the payments Code. No later than five Business Days before the Closing Date, the Company Parties shall provide to Parent or its counsel drafts of the consent, waiver, disclosure statement and benefits provided hereunder is calculations necessary will be made applying principlesto effectuate the approval process and shall consider in good faith Parent’s comments. Prior to the Closing Date, assumptions and procedures consistent to the extent applicable, the Company Party shall deliver to Parent evidence that (x) a vote of the respective Company Party’s stockholders was received in conformance with Section 280G of the Code by an accounting firm and the regulations thereunder, or law firm of national reputation that is selected for this purpose by (y) such requisite Company Party stockholder approval has not been obtained with respect to the Company in its sole discretion (the “Waived 280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify Benefits, and, as reasonable compensation that is exempt from being a parachute payment under Section consequence, the Waived 280G of the Code, the 280G Firm Benefits have not been and shall not be paid or the Company may retain the services of an independent valuation expertprovided. (d) If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6 will require the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.

Section 280G of the Code. If applicable, prior to the Closing, the Company shall (a) Notwithstanding anything in this Agreement to the contrary, if Executive secure from any Person who is a “disqualified individual,” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive will be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary will be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm or law firm of national reputation that is selected for this purpose by the Company in its sole discretion (the “280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G of the Code, and who has a right to any payments or benefits or potential right to any payments or benefits as a result of or in connection with the consummation of the Proposed Transactions that could be deemed to constitute “parachute payments” pursuant to Section 280G Firm or the Company may retain the services of an independent valuation expert. (d) If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6 will require the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code, a waiver of such Person’s rights to any such payments or benefits applicable to such Person to the extent that all remaining payments or benefits applicable to such Person shall not be deemed to be “excess parachute payments” pursuant to Section 280G of the Code (to the extent waived, the “Waived 280G Benefits”) and (b) for all such obtained waivers, submit to the Company’s stockholders for approval the Waived 280G Benefits, to the extent and in the manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code. The Company shall not pay any of the Waived 280G Benefits if such Waived 280G Benefits are not approved by the Company’s stockholders as contemplated above. At least five (5) Business Days prior to obtaining such waivers and soliciting such stockholder approval, the Company shall provide drafts of such waivers and such stockholder approval materials to the Purchaser for its review and approval (such approval not to be unreasonably withheld, conditioned or delayed). Prior to the Closing, the Company shall deliver to the Purchaser evidence reasonably satisfactory to the Purchaser that the vote of the Company’s stockholders was solicited in conformance with Section 280G and that (A) the stockholder approval was obtained with respect to any payments or benefits that were subject to the stockholder vote, or (B) such stockholder approval was not obtained and as a consequence, that such “parachute payments” shall not be made or provided, pursuant to the waivers of those payments or benefits.

Section 280G of the Code. Prior to the Closing, the Seller shall (a) Notwithstanding anything in this Agreement to the contrary, if Executive is a secure from each “disqualified individual” (as defined in Section 280G(c) within the meaning of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive will be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary will be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm such required waivers, consents, or law firm of national reputation that is selected for this purpose by agreements prior to the Company in its sole discretion Shareholder Vote (the “280G Firm”). In order defined herein) necessary to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under comply with Section 280G of the Code, and (b) seek the 280G Firm approval of the Seller’s equityholders who are entitled to vote in a manner that complies with Section 280G(b)(5)(B) of the Code and Section 1.280G-1 of the Treasury Regulations (a “Shareholder Vote”) of the right of any such “disqualified individual” to receive any and all payments (or other benefits) contingent on the Company may retain consummation of the services transactions contemplated by this Agreement (pursuant to Section 280G(b)(2)(A)(i) of an independent valuation expert. (dthe Code) If a reduced to the extent necessary so that no payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if received by such “disqualified individual” shall be a “parachute payment” exists, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6 will require the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 280G(b) of the Code. At least five (5) Business Days prior to providing the Seller’s equityholders with documentation necessary for purposes of securing the Shareholder Vote, the Seller shall provide copies of all such documentation to the Purchaser for its review and reasonable comment. For the avoidance of doubt, (i) obtaining a Shareholder Vote is not a condition to Closing or otherwise a condition to the Seller’s equityholders’ approval of this Agreement, and (ii) in no event shall the Purchaser have any Liability with respect to or resulting from any failure of the Seller to comply with Section 280G of the Code, including with respect to obtaining the Shareholder Vote.

Section 280G of the Code. (a) Notwithstanding anything in this Agreement Prior to the contraryClosing, if Executive is a “disqualified individual” the Company shall (as defined in Section 280G(ci) use best efforts to provide the shareholders of the Code)Company with adequate disclosure, and within the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any other person, would constitute a “parachute payment” (as defined in meaning of Section 280G(b)(2280G(b)(5)(B)(ii) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive will be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of the Code and the Treasury Regulations promulgated thereunder, of all material facts concerning the payments of certain employees of the Company, (ii) obtain approval of such payments in a manner which satisfies the requirements of Section 280G(b)(5)(B)(i) of the Code and the Treasury Regulations promulgated thereunder, and (iii) provide evidence to the Purchaser of its compliance with the requirements of this Section 5.16, provided that the Company shall be deemed to have satisfied the requirement that disclosure be provided to its shareholders if the Company uses best efforts to determine the last known mailing address of each such shareholder, properly sends such disclosure to each such shareholder at such address by certified mail, return receipt requested or other similar method, and with respect to any other shareholder for whom a delivery receipt is not obtained, uses best efforts to locate such shareholder and provide it with the referenced disclosure, provided, however, that such efforts will not cure a defect in the adequacy of the disclosure itself, and provided further that "shareholder" shall include any person treated as a shareholder under either the applicable taxesTreasury Regulations or general principals of federal income tax laws. For purposes of the foregoing, the Company represents that (a) the general partner of each of the shareholders which are entities (each, an "Entity Shareholder"). , is not a "disqualified individual", (b) The reduction the stock of payments the Company represents a "substantial portion" of the assets of each such Entity Shareholder, and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction in the amount none of the payments and benefits provided hereunder is necessary will be made applying principleslimited partners of any of the Entity Shareholders are entitled to vote on issues involving the management of the respective Entity Shareholder's investments pursuant to the operative provisions of the respective Entity Shareholder's governing documents or otherwise, assumptions and procedures consistent with each within the meaning of Section 280G of the Code by an accounting firm or law firm and the Treasury Regulations thereunder, and each of national reputation that is selected for this purpose by the Company in its sole discretion (and the “280G Firm”). In order Purchaser agree that the determination of who is a "shareholder" under the applicable Treasury Regulations and general principals of federal income tax laws shall be subject to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G the determination of the Code, the 280G Firm or both the Company may retain and the services of an independent valuation expertPurchaser. (d) If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6 will require the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.

Section 280G of the Code. (a) Notwithstanding anything in this Agreement If requested by Purchaser, prior to the contraryMerger Closing Date, if Executive is a the Company shall (i) use its commercially reasonable efforts to obtain from each “disqualified individual” (as defined in within the meaning of Section 280G(c) of the CodeCode and the regulations thereunder), and a written waiver that shall provide that, if the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any other person, would constitute a “parachute payment” (as defined in requisite stockholder approval under Section 280G(b)(2280G(b)(5)(B) of the Code)Code and the regulations thereunder is not obtained, then no payments and/or benefits that would separately or in the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that aggregate constitute “excess parachute payments” within the present value meaning of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3280G(b)(1) of the CodeCode (“Parachute Payments”) and so that no portion with respect to such disqualified individual in the absence of such amounts and benefits received stockholder approval shall be payable to or retained by Executive will be subject such disqualified individual to the excise tax imposed extent such Parachute Payments would not be deductible by reason of the application of Section 4999 280G of the Code or (b) paid would result in full, whichever produces the better “net after-tax position” to Executive (taking into account any applicable imposition of the excise tax under Section 4999 of the Code on such disqualified individual; and any other applicable taxes). (bii) The reduction submit to stockholders of payments and benefits hereunderthe Company for approval, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (cmanner and form that complies with the stockholder approval procedures set forth in Section 280G(b)(5)(B) The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary will be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm and the regulations thereunder any payments and/or benefits that may separately or law firm in the aggregate constitute Parachute Payments in the absence of national reputation that is selected for this purpose such stockholder approval. All materials, if any, produced by the Company in its sole discretion connection with the implementation of this Section 5(j) shall be provided to Purchaser at least five (the “280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G of the Code5) Business Days in advance for Purchaser’s review and comment, the 280G Firm or and the Company may retain the services shall consider any of an independent valuation expertPurchaser’s requested changes or comments in good faith and not unreasonably omit them. (d) If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6 will require the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.

Section 280G of the Code. (a) Notwithstanding anything in Parent and the Company acknowledge that the consideration payable pursuant to this Agreement and certain other amounts which may be received by any person in connection with the transactions contemplated by this Agreement may be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder (“Section 280G”)). The Company shall use its reasonable best efforts to obtain and deliver to Parent, prior to the contrarysolicitation of the requisite approval of the Company’s stockholders described in Section 6.11(b), if Executive a Section 280G Waiver from each person who is a “disqualified individual” (within the meaning of Section 280G), as defined determined immediately prior to the initiation of the solicitation of the requisite approval of the Company’s stockholders described in Section 280G(c) of the Code6.11(b), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has who might otherwise receive or have the right or entitlement to receive from the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive will be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary will be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm or law firm of national reputation that is selected for this purpose by the Company in its sole discretion (the “280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G in connection with the transactions contemplated by this Agreement, unless the requisite approval of the Code, the 280G Firm or the Company may retain the services Company’s stockholders of an independent valuation expertsuch parachute payments is obtained pursuant to Section 6.11(b). (db) If As soon as practicable following the delivery by the Company to Parent of the Section 280G Waiver, the Company shall submit to the Company’s stockholders for approval in accordance with Section 280G(b)(5)(B) of the Code any payments and/or benefits that are subject to a reduced payment or benefit is made or provided and through error or otherwise Section 280G Waiver, such that payment or benefit, when aggregated with other such payments and benefits from shall not be deemed to be “parachute payments” under Section 280G, and prior to the Effective Time the Company used shall deliver to Parent evidence reasonably satisfactory to Parent (i) that a vote of the Company’s stockholders was solicited in determining if conformance with Section 280G, and the requisite approval of the Company’s stockholders was obtained with respect to any payments and/or benefits that were subject to such vote (the “Section 280G Approval”) or (ii) that the Section 280G Approval was not obtained and as a consequence, pursuant to the Section 280G Waiver, such “parachute paymentpayments” exists, exceeds $1.00 less than three shall not be made or provided. (3c) times Executive’s base amount, then Executive must immediately repay such excess The form of the Section 280G Waiver and any materials to be submitted to the Company upon notification that an overpayment has been made. Nothing Company’s stockholders in this connection with the Section 6 will require 280G Approval (the Company “Section 280G Soliciting Materials”) shall be subject to review and approval by Parent, which shall not be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Codeunreasonably withheld.

Section 280G of the Code. (a) Notwithstanding anything in this Agreement Prior to the contraryClosing Date, if Executive is Aesynt Holdings, Inc. shall seek a vote of the Sellers (to the extent and in the manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and in a manner reasonably satisfactory to Buyer) as to whether any “disqualified individual” (as defined in Section 280G(c280G of the Code) who, in the absence of shareholder approval satisfying the requirements of Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any other person, would constitute a “parachute payment” (as defined receive payments in Section 280G(b)(2) of connection with the Code), then the payments and benefits provided for in transactions contemplated by this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive will be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to constitute “excess parachute payments” within the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction in the amount meaning of the payments and benefits provided hereunder is necessary will be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm or law firm of national reputation that is selected for this purpose by the Company in its sole discretion (the “280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G of the Code, has a right to receive such payments. Prior to such vote, Aesynt Holdings, Inc. shall obtain waivers from such individuals in a manner reasonably satisfactory to Buyer, such that unless such payments are approved by the 280G Firm or the Company may retain the services of an independent valuation expert. (d) If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess Sellers to the Company upon notification that an overpayment has been made. Nothing extent and in this Section 6 will require the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities manner required under Section 4999 Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code, no such payments shall be made. For the avoidance of doubt, the Closing shall not be conditioned on Aesynt Holdings, Inc. receiving such shareholder approval for any such payments. Sellers agree that in the absence of such shareholder approval, no parachute payments shall be made to any disqualified individual. The form and substance of all documents contemplated by this Section 6.08, including the waivers, shall be subject to the prior review and reasonable approval of Buyer.

Section 280G of the Code. (ai) Notwithstanding anything in this Agreement or otherwise to the contrary, if Executive is a “disqualified individual” in the event that any payment, award, benefit or distribution (as defined in Section 280G(cor any acceleration of any payment, award, benefit or distribution) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from by the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) member of the Code)Company Group, then or any entity that effectuates a change of control (or any of its affiliates) to or for the payments and benefits provided for in benefit of the Executive (whether pursuant to the terms of this Agreement will be either or any other plan, equity-based award, arrangement, agreement or otherwise) (aall such payments, awards, benefits and/or distributions being hereinafter referred to as the “Total Payments”) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive will would be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of the Code and (or any other applicable taxessuccessor provision) (the “Excise Tax”). , then Executive will receive either (a) the full amount of the Total Payment, or (b) The reduction the amount of benefits provided as to such lesser extent that would result in no portion of the Total Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state, local, employment and other taxes and Excise Tax (including, without limitation, any interest or penalties on such taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of payments and benefits hereunderprovided for under this Agreement or otherwise; provided that, if applicable, will be made by reducing, first, in the event that any payments or benefits to Executive could be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary will be made applying principles, assumptions and procedures consistent with exempt from Section 280G of the Code if the shareholder approval requirements under Section 280G(b)(5) of the Code were met, such payments will be conditioned on shareholder approval and the Company or any of its applicable affiliates agrees to use best efforts to seek to obtain such shareholder approval. (ii) Any determinations that are made pursuant to this Section 8(l) shall be made by an a nationally recognized certified public accounting firm or law firm of national reputation that is shall be selected for this purpose by the Company in its sole discretion (and paid by the “280G Firm”). In order Company) prior to assess whether payments under this Agreement or otherwise qualify as reasonable compensation any transaction that is exempt from being a parachute payment under subject to Section 280G of the CodeCode (the “Accountant”), which determination shall be certified by the 280G Firm or the Company may retain the services of an independent valuation expert. (d) If Accountant and set forth in a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess certificate delivered to the Company upon notification that an overpayment has been made. Nothing Executive setting forth in this Section 6 will require reasonable detail the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 basis of the CodeAccountant’s determinations.

Section 280G of the Code. (a) Notwithstanding anything in Parent and the Company acknowledge that the consideration payable pursuant to this Agreement and certain other amounts which may be received by any person in connection with the Transactions may be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder (“Section 280G”)). The Company shall obtain and deliver to Parent, prior to the contrarysolicitation of the requisite approval of the Company’s shareholders described in Section 6.11(b), if Executive a Section 280G Waiver from each person who is a “disqualified individual” (within the meaning of Section 280G), as defined determined immediately prior to the initiation of the solicitation of the requisite approval of the Company’s shareholders described in Section 280G(c) of the Code6.11(b), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has who might otherwise receive or have the right or entitlement to receive from the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive will be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary will be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm or law firm of national reputation that is selected for this purpose by the Company in its sole discretion (the “280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G in connection with the Transactions, unless the requisite approval of the Code, the 280G Firm or the Company may retain the services Company’s shareholders of an independent valuation expertsuch parachute payments is obtained pursuant to Section 6.11(b). (db) If As soon as practicable following the delivery by the Company to Parent of the Section 280G Waivers, the Company shall submit to the Company’s shareholders for approval in accordance with Section 280G(b)(5)(B) of the Code any payments and/or benefits that are subject to a reduced payment or benefit is made or provided and through error or otherwise Section 280G Waiver, such that payment or benefit, when aggregated with other such payments and benefits from shall not be deemed to be “parachute payments” under Section 280G, and prior to the Effective Time the Company used shall deliver to Parent evidence reasonably satisfactory to Parent (i) that a vote of the Company’s shareholders was solicited in determining if conformance with Section 280G, and the requisite approval of the Company’s shareholders was obtained with respect to any payments and/or benefits that were subject to such vote (the “Section 280G Approval”) or (ii) that the Section 280G Approval was not obtained and as a consequence, pursuant to the Section 280G Waiver, such “parachute paymentpayments” exists, exceeds $1.00 less than three shall not be made or provided. (3c) times Executive’s base amount, then Executive must immediately repay such excess The form of the Section 280G Waiver and any materials to be submitted to the Company upon notification that an overpayment has been made. Nothing Company’s shareholders in this connection with the Section 6 will require 280G Approval (the Company “Section 280G Soliciting Materials”) shall be subject to review and approval by Parent, which approval shall not be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Codeunreasonably withheld.

Section 280G of the Code. (a) Notwithstanding anything in Parent and the Company acknowledge that the consideration payable pursuant to this Agreement and certain other amounts which may be received by any person in connection with the Transactions may be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder (“Section 280G”)). The Company shall obtain and deliver to Parent, prior to the contrarysolicitation of the requisite approval of the Company’s stockholders described in Section 6.11(b), if Executive a Section 280G Waiver from each person who is a “disqualified individual” (within the meaning of Section 280G), as defined determined immediately prior to the initiation of the solicitation of the requisite approval of the Company’s stockholders described in Section 280G(c) of the Code6.11(b), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has who might otherwise receive or have the right or entitlement to receive from the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive will be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary will be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm or law firm of national reputation that is selected for this purpose by the Company in its sole discretion (the “280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G in connection with the Transactions, unless the requisite approval of the Code, the 280G Firm or the Company may retain the services Company’s stockholders of an independent valuation expertsuch parachute payments is obtained pursuant to Section 6.11(b). (db) If As soon as practicable following the delivery by the Company to Parent of the Section 280G Waivers, the Company shall submit to the Company’s stockholders for approval in accordance with Section 280G(b)(5)(B) of the Code any payments and/or benefits that are subject to a reduced payment or benefit is made or provided and through error or otherwise Section 280G Waiver, such that payment or benefit, when aggregated with other such payments and benefits from shall not be deemed to be “parachute payments” under Section 280G, and prior to the Merger 1 Effective Time the Company used shall deliver to Parent evidence reasonably satisfactory to Parent (i) that a vote of the Company’s stockholders was solicited in determining if conformance with Section 280G, and the requisite approval of the Company’s stockholders was obtained with respect to any payments and/or benefits that were subject to such vote (the “Section 280G Approval”) or (ii) that the Section 280G Approval was not obtained and as a consequence, pursuant to the Section 280G Waiver, such “parachute paymentpayments” exists, exceeds $1.00 less than three shall not be made or provided. (3c) times Executive’s base amount, then Executive must immediately repay such excess The form of the Section 280G Waiver and any materials to be submitted to the Company upon notification that an overpayment has been made. Nothing Company’s stockholders in this connection with the Section 6 will require 280G Approval (the Company “Section 280G Soliciting Materials”) shall be subject to review and approval by Parent, which approval shall not be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Codeunreasonably withheld.

Section 280G of the Code. Each Company Party shall (a) Notwithstanding anything in this Agreement use its reasonable commercial efforts to the contrary, if Executive secure from any Person who (i) is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) 280G of the Code) and so (ii) has a right or potential right to any payments and/or benefits in connection with the transactions contemplated by this Agreement that no could be deemed to constitute “parachute payments” pursuant to Section 280G of the Code, a waiver of all or a portion of such amounts and Person’s rights to any such payments and/or benefits, such that all remaining payments and/or benefits received by Executive will applicable to such Person shall not be subject deemed to the excise tax imposed by be “parachute payments” pursuant to Section 4999 280G of the Code or (the “Waived 280G Benefits”), and (b) paid in fullfor all such obtained waivers, whichever produces submit for approval by the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of respective Company Party’s shareholders the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuingWaived 280G Benefits, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction and in the amount manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the payments Code. No later than five (5) Business Days before the Closing Date, the Company shall provide to Parent or its counsel drafts of the consent, waiver, disclosure statement and benefits provided hereunder is calculations necessary will be made applying principlesto effectuate the approval process and shall consider in good faith Parent’s comments. Prior to the Closing Date, assumptions and procedures consistent the Company Party shall deliver to Parent evidence that (x) a vote of the respective Company Party’s shareholders was received in conformance with Section 280G of the Code by an accounting firm and the regulations thereunder, or law firm of national reputation that is selected for this purpose by (y) such requisite Company Party shareholder approval has not been obtained with respect to the Company in its sole discretion (the “Waived 280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify Benefits, and, as reasonable compensation that is exempt from being a parachute payment under Section consequence, the Waived 280G of the Code, the 280G Firm Benefits have not been and shall not be paid or the Company may retain the services of an independent valuation expertprovided. (d) If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6 will require the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.

Section 280G of the Code. To the extent applicable, each Group Company shall (a) Notwithstanding anything in this Agreement use its reasonable commercial efforts to the contrary, if Executive secure from any Person who (i) is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) 280G of the Code) and so (ii) has a right or potential right to any payments and/or benefits in connection with the transactions contemplated by this Agreement that no could be deemed to constitute “parachute payments” pursuant to Section 280G of the Code, a waiver of all or a portion of such amounts and Person’s rights to any such payments and/or benefits, such that all remaining payments and/or benefits received by Executive will applicable to such Person shall not be subject deemed to the excise tax imposed by be “parachute payments” pursuant to Section 4999 280G of the Code or (the “Waived 280G Benefits”), and (b) paid in fullfor all such obtained waivers, whichever produces submit for approval by the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of respective Group Company’s stockholders the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuingWaived 280G Benefits, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction and in the amount manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the payments Code. No later than five Business Days before the Closing Date, the Group Companies shall provide to FRLA or its counsel drafts of the consent, waiver, disclosure statement and benefits provided hereunder is calculations necessary will be made applying principlesto effectuate the approval process and shall consider in good faith FRLA’s comments. Prior to the Closing Date, assumptions and procedures consistent to the extent applicable, the Group Companies shall deliver to FRLA evidence that (x) a vote of the respective Group Company’s stockholders was received in conformance with Section 280G of the Code by an accounting firm and the regulations thereunder, or law firm of national reputation that is selected for this purpose by (y) such requisite Group Company stockholder approval has not been obtained with respect to the Company in its sole discretion (the “Waived 280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify Benefits, and, as reasonable compensation that is exempt from being a parachute payment under Section consequence, the Waived 280G of the Code, the 280G Firm Benefits have not been and shall not be paid or the Company may retain the services of an independent valuation expertprovided. (d) If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6 will require the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.

Section 280G of the Code. (a) Notwithstanding anything in Parent and the Company acknowledge that the consideration payable pursuant to this Agreement and certain other amounts which may be received by any Person in connection with the transactions contemplated by this Agreement may be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder (“Section 280G”)). The Company shall obtain and deliver to Parent, prior to the contrarysolicitation of the requisite Company Stockholder approval described in Section 6.16(b), if Executive a Section 280G Waiver from each Person who is a “disqualified individual” (within the meaning of Section 280G), as defined determined immediately prior to the initiation of the solicitation of the requisite Company Stockholder approval described in Section 280G(c) of the Code6.16(b), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has who might otherwise receive or have the right or entitlement to receive from the Company or any other person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement will be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and/or such person(s) will be $1.00 less than three (3) times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive will be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better “net after-tax position” to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). (b) The reduction of payments and benefits hereunder, if applicable, will be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. (c) The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary will be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm or law firm of national reputation that is selected for this purpose by the Company in its sole discretion (the “280G Firm”). In order to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G in connection with the transactions contemplated by this Agreement, unless the requisite Company Stockholder approval of the Code, the 280G Firm or the Company may retain the services of an independent valuation expertsuch parachute payments is obtained pursuant to Section 6.16(b). (db) If As soon as practicable following the delivery by the Company to Parent of the Section 280G Waiver, the Company shall submit to the Company Stockholders for approval in accordance with Section 280G(b)(5)(B) of the Code any payments and/or benefits that are subject to a reduced payment or benefit is made or provided and through error or otherwise Section 280G Waiver, such that payment or benefit, when aggregated with other such payments and benefits from shall not be deemed to be “parachute payments” under Section 280G, and prior to the Effective Time the Company used shall deliver to Parent evidence reasonably satisfactory to Parent (i) that a Company Stockholder vote was solicited in determining if a “parachute payment” existsconformance with Section 280G, exceeds $1.00 less than three (3) times Executive’s base amount, then Executive must immediately repay such excess and the requisite Company Stockholder approval was obtained with respect to any payments and/or benefits that were subject to the Company upon notification Stockholder vote (the “Section 280G Approval”) or (ii) that an overpayment has been made. Nothing in this the Section 6 will require 280G Approval was not obtained and as a consequence, pursuant to the Section 280G Waiver, such “parachute payments” shall not be made or provided. (c) The form of the Section 280G Waiver and any materials to be submitted to the Company Stockholders in connection with the Section 280G Approval (the “Section 280G Soliciting Materials”) shall be subject to be responsible for, review and approval by Parent. The Company will promptly advise Parent if at any time prior to the Closing the Company shall obtain Knowledge of any facts that might make it necessary or have any liability appropriate to amend or obligation supplement the Section 280G Soliciting Materials in order to make statements contained or incorporated by reference therein not misleading or to comply with respect to, Executive’s excise tax liabilities under Section 4999 of the Codeapplicable Law.