Common use of Code Section 280G Clause in Contracts

Code Section 280G. (a) If after the Effective Date, there occurs a transaction that constitutes a “change of control” of the Company under Treas. Reg. Section 1.280G and, immediately prior to such transaction the stock of the Company is not publicly traded and the exemption described in Section 280G(b)(5) of the Code would apply to payments by the Company to the Executive in connection with a change of control (as defined in Section 280G of the Code and the regulations) to the extent the Company so requests, the Executive shall cooperate with the Company in good faith in connection with the Company satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code and the regulations thereunder. (b) If after the Effective Date, there occurs a transaction that constitutes a “change of control” of the Company under Treas. Reg. Section 1.280G and, either (i) the Company does not request the Executive to cooperate in connection with satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code or (ii) the Company is publicly traded and such exemption would not apply to payments by the Company to the Executive in connection with a change in control, then the provisions of Sections 9(c) through (f) below shall apply. (c) If it is reasonably determined that any payment or distribution by the Company or any affiliate of 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 restricted stock award, stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (the “Payments”) is subject to the excise tax imposed by Section 4999 of the Code, (the “Excise Tax”), except as provided below, the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of itemized deductions and personal exemptions attributable to the Gross-Up Payment, shall be equal to the Payments. The Gross-Up Payment shall be paid to the Executive within 30 days of the determination that the Excise Tax is applicable; provided that, the Gross-Up Payment shall in all events be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service. Notwithstanding the foregoing provisions of this Section 9(c), if it shall be determined that the Executive is entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 6(a)(i)(3) and next by reducing the amount of any other cash payments due to the Executive and finally by amending or terminating any equity-based awards held by the Executive. (d) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to the Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services rendered (within the meaning of Section 280G(b)(4)(B) of the Code and the regulations thereunder and (including any restraints on employment) in excess of the base amount (as defined in Section 280G(b)(3) of the Code) (the “Base Amount”) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the accounting firm selected by the Company or the Tax Counsel and reasonably acceptable to the Executive (the “Auditor”) in accordance with the principles of Sections 280G(d)(3) and (4) of the Code and applicable guidance under Treasury Regulation Section 1.280G-1, and U.S. Treasury Department rulings and releases. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purpose of Sections 9(c) and (d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (e) If the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Payments.

Code Section 280G. (a) If If, after the Effective DateTime, none of the Company or any of its consolidated subsidiaries are an entity whose stock is readily tradable on an established securities market (or otherwise) and a “change of control” under Regulation 1.280G of the Internal Revenue Code of 1986, as amended (the “Code”) occurs, you and the Company shall cooperate and use commercially reasonable best efforts to take such actions as may be necessary to avoid the imposition of the excise tax imposed by Section 4999 of the Code or a loss of deductibility under Section 280G of the Code, including without limitation your agreement to waive the accelerated vesting, lapse of restrictions or payment of any such payments and benefits and the Company seeking to obtain stockholder approval in accordance with the terms of Section 280G(b)(5). (b) If, after the Effective Time, there occurs a transaction that constitutes a “change of control” under Regulation 1.280G of the Company under Treas. Reg. Section 1.280G Code and, immediately prior to the consummation of such transaction the stock of the Company is not publicly traded and the exemption described in Section 280G(b)(5) of the Code would apply to payments by the Company to the Executive in connection with a change of control (as defined in Section 280G of the Code and the regulations) to the extent the Company so requests, the Executive shall cooperate with the Company in good faith in connection with the Company satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code and the regulations thereunder. (b) If after the Effective Date, there occurs a transaction that constitutes a “change of control” of , the Company under Treas. Reg. Section 1.280G andor any of its consolidated subsidiaries are an entity whose equity securities are readily tradable on an established securities market (or otherwise), either (i) the Company does not request the Executive to cooperate in connection with satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code or (ii) the Company is publicly traded and such exemption would not apply to payments by the Company to the Executive in connection with a change in control, then the following provisions of Sections 9(c) through (f) below shall will apply.: (c1) If it is reasonably determined that any payment payments or distribution benefits provided or to be provided by the Company or any affiliate of the Company its affiliates to you or for the your 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 restricted stock award, stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (the “Covered Payments”) is constitute parachute payments within the meaning of Section 280G of the Code (“Parachute Payments”) and would, but for this Section 10(b), be subject to the excise tax imposed by under Section 4999 of the CodeCode (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”), except as provided below, then the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of itemized deductions and personal exemptions attributable to the Gross-Up Payment, shall be equal to the Payments. The Gross-Up Payment shall be paid to the Executive within 30 days of the determination that the Excise Tax is applicable; provided that, the Gross-Up Payment shall in all events be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service. Notwithstanding the foregoing provisions of this Section 9(c), if it shall be determined that the Executive is entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 6(a)(i)(3) and next by reducing the amount of any other cash payments due to the Executive and finally by amending or terminating any equity-based awards held by the Executive. (d) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Covered Payments shall be treated as “parachute payments” payable either (within A) in full or (B) reduced to the meaning of Section 280G(b)(2) minimum extent necessary to ensure that no portion of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to the Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services rendered (within the meaning of Section 280G(b)(4)(B) of the Code and the regulations thereunder and (including any restraints on employment) in excess of the base amount (as defined in Section 280G(b)(3) of the Code) (the “Base Amount”) allocable to such reasonable compensation, or are otherwise not Covered Payments is subject to the Excise Tax, whichever of the foregoing results in your receipt on an after-tax basis of the greatest amount of benefits after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (iii) including the value Excise Tax). If required to be reduced pursuant to the foregoing, the Covered Payments shall be reduced in a manner consistent with the requirements of Section 409A of the Code, to the extent applicable, and where two or more economically equivalent amounts are subject to reduction but payable at different times, such amounts payable at the later time shall be reduced first but not below zero. If the Covered Payments are paid in full, you will be solely responsible for the payment of any noncash benefits or any deferred payment or benefit Excise Tax and the Company will have no further obligations with respect thereto. (2) Any determinations required under this Section 10(b) shall be determined by the accounting firm selected made in writing by the Company or the Tax Counsel by an accounting firm selected and reasonably acceptable to the Executive (the “Auditor”) in accordance with the principles of Sections 280G(d)(3) and (4) of the Code and applicable guidance under Treasury Regulation Section 1.280G-1, and U.S. Treasury Department rulings and releases. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated paid for purpose of Sections 9(c) and (d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (e) If the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to by the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), You shall provide the Company shall make an additional Gross-Up Payment to the Executive in respect of with such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. The Executive information and documents as the Company shall each may reasonably cooperate with the other request in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect order to the Paymentsmake a determination under this Section 10.

Code Section 280G. (a) If after any payment or benefit due under this Agreement, together with all other payments and benefits that the Effective Date, there occurs a transaction that constitutes a “change of control” of Executive receives or is entitled to receive from the Company under Treas. Reg. Section 1.280G andor any of its subsidiaries, immediately prior to such transaction the stock affiliates or related entities, would (if paid or provided) constitute an excess parachute payment for purposes of the Company is not publicly traded and the exemption described in Section 280G(b)(5) of the Code would apply to payments by the Company to the Executive in connection with a change of control (as defined in Section 280G of the Code and the regulations) to the extent the Company so requestsCode, the amounts otherwise payable and benefits otherwise due under this Agreement, or the Executive shall cooperate with is entitled to receive from the Company in good faith in connection with the Company satisfying the shareholder approval exemption under Section 280G(b)(5) Company, any of the Code and the regulations thereunder. (b) If after the Effective Dateits subsidiaries, there occurs a transaction that constitutes a “change of control” of the Company under Treas. Reg. Section 1.280G andaffiliates or related entities, will either (i) the Company does not request the Executive to cooperate be delivered in connection with satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code full, or (ii) be limited to the minimum extent necessary to ensure that no portion thereof will fail to be tax-deductible to the Company is publicly traded and such exemption would not apply to payments by the Company to the Executive in connection with a change in control, then the provisions reason of Sections 9(c) through (f) below shall apply. (c) If it is reasonably determined that any payment or distribution by the Company or any affiliate Section 280G of the Company to Code, whichever of the foregoing amounts, taking into account the applicable federal, state or for local income and employment taxes and the benefit excise tax imposed under Section 4999 of the Code, results in the receipt by 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 agreementon an after-tax basis, policy, plan, program or arrangement, including without limitation any restricted stock award, stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (the “Payments”) is greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and/or benefits may be subject to the excise tax imposed by under Section 4999 of the Code, (the “Excise Tax”), except as provided below, the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of itemized deductions and personal exemptions attributable to the Gross-Up Payment, shall be equal to the Payments. The Gross-Up Payment shall be paid to the Executive within 30 days of the determination that the Excise Tax is applicable; provided that, the Gross-Up Payment shall in all events be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service. Notwithstanding the foregoing provisions of this Section 9(c), if it shall be determined that the Executive is entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 6(a)(i)(3) and next by reducing the amount of any other cash payments due to the Executive and finally by amending or terminating any equity-based awards held by the Executive. (d) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to the Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services rendered (within the meaning of Section 280G(b)(4)(B) of the Code and the regulations thereunder and (including any restraints on employment) in excess of the base amount (as defined in Section 280G(b)(3) of the Code) (the “Base Amount”) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the accounting firm selected by the Company or the Tax Counsel and reasonably acceptable to the Executive (the “Auditor”) in accordance with the principles of Sections 280G(d)(3) and (4) of the Code and applicable guidance under Treasury Regulation Section 1.280G-1, and U.S. Treasury Department rulings and releases. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purpose of Sections 9(c) and (d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (e) If the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined payments and/or benefits are to exceed be reduced pursuant to this subparagraph F, such payments and benefits shall be reduced such that the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason reduction of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment such payments and/or benefits to the Executive as a result of this subparagraph F is minimized. In applying this principle, the reduction shall be made in respect 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 excess (plus any interest, penalties or additions payable amounts shall be reduced on a pro rata basis but not below zero. All determinations required to be made under this subparagraph F shall be made by the Company’s independent public accounting firm which shall provide detailed supporting calculations both to the Company and the Executive with respect to such excess) within five fifteen (515) business days following of the receipt of notice from the Executive that there has been a payment or benefit subject to this subparagraph F, or such earlier time that as is requested by the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the PaymentsCompany.

Code Section 280G. (a) If after Notwithstanding anything to the Effective Datecontrary in this Agreement, there occurs a transaction that constitutes a “change of control” of in any other agreement between or among the Executive, the Company under Treas. Reg. Section 1.280G and, immediately prior to such transaction the stock or any of the Company is not publicly traded and the exemption described its Affiliates or in Section 280G(b)(5) of the Code would apply to payments any plan maintained by the Company to the Executive or any Affiliate, if there is a 280G Change in connection with a change of control Control (as defined in Section 8(g)(i) below), the following rules shall apply: (a) Except as otherwise provided in Section 8(b) below, if it is determined in accordance with Section (d) below that any portion of the Payments (as defined in Section 8(g)(ii) below) that otherwise would be paid or provided to the Executive or for the Executive’s benefit in connection with the 280G Change in Control would be subject to the excise tax imposed under Section 4999 of the Code (“Excise Tax”), then such Payments shall be reduced by the smallest total amount necessary in order for the aggregate present value of all such Payments after such reduction, as determined in accordance with the applicable provisions of Section 280G of the Code and the regulationsregulations issued thereunder, not to exceed the Excise Tax Threshold Amount (as defined in Section 8(g)(iii) to the extent the Company so requests, the Executive shall cooperate with the Company in good faith in connection with the Company satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code and the regulations thereunderbelow). (b) If after the Effective Date, there occurs a transaction that constitutes a “change of control” No reduction in any of the Company under TreasExecutive’s Payments shall be made pursuant to Section 8(a) above if it is determined in accordance with Section 8(d) below that the After Tax Amount of the Payments payable to the Executive without such reduction would exceed the After Tax Amount of the reduced Payments payable to the Executive in accordance with Section 8(a) above. Reg. Section 1.280G andFor purposes of the foregoing, either (i) the Company does not request “After Tax Amount” of the Payments, as computed with, and as computed without, the reduction provided for under Section 8(a) above, shall mean the amount of the Payments, as so computed, that the Executive to cooperate would retain after payment of all taxes (including without limitation any federal, state or local income taxes, the Excise Tax or any other excise taxes, any Medicare or other employment taxes, and any other taxes) imposed on such Payments in connection with satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code year or years in which payable; and (ii) the Company amount of such taxes shall be computed at the rates in effect under the applicable tax laws in the year in which the 280G Change in Control occurs, or if then ascertainable, the rates in effect in any later year in which any Payment is publicly traded expected to be paid following the 280G Change in Control, and in the case of any income taxes, by using the maximum combined federal, state and (if applicable) local income tax rates then in effect under such exemption would not apply to payments by the Company to the Executive in connection with a change in control, then the provisions of Sections 9(c) through (f) below shall applylaws. (c) If it is reasonably determined Any reduction in the Executive’s Payments required to be made pursuant to Section 8(a) above (the “Required Reduction”) shall be made as follows: first, any Payments that became fully vested prior to the 280G Change in Control and that pursuant to paragraph 8(b) of Treas. Reg. §1.280G-1, Q/A 24 are treated as Payments solely by reason of the acceleration of their originally scheduled dates of payment shall be reduced, by cancellation of the acceleration of their dates of payment; second, any payment severance payments or distribution by benefits, performance-based cash or performance-based equity incentive awards, or other Payments, in all cases the full amounts of which are treated as contingent on the 280G Change in Control pursuant to paragraph 8(a) of Treas. Reg. §1.280G-1, Q/A 24, shall be reduced; and third, any cash or equity incentive awards, or non-qualified deferred compensation amounts, that vest solely based on the Executive’s continued service with the Company or any affiliate of its Affiliates, and that pursuant to paragraph (c) of Treas. Reg. §1.280G-1, Q/A 24 are treated as contingent on the 280G Change in Control because they become vested as a result of the 280G Change in Control, shall be reduced, first by cancellation of any acceleration of their originally scheduled dates of payment (if payment with respect to such items is not treated as automatically occurring upon the vesting of such items for purposes of Section 280G) and then, if necessary, by canceling the acceleration of their vesting. In each case, the amounts of the Payments shall be reduced in the inverse order of their originally scheduled dates of payment or vesting, as applicable, and shall be so reduced only to the extent necessary to achieve the Required Reduction. (d) A determination as to whether any Excise Tax is payable with respect to the Executive’s Payments and if so, as to the amount thereof, and a determination as to whether any reduction in the Executive’s Payments is required pursuant to the provisions of Sections 8(a) and 8(b) above, and if so, as to the amount of the reduction so required, shall be made by no later than fifteen (15) days prior to the closing of the transaction or the occurrence of the event that constitutes the 280G Change in Control, or as soon thereafter as administratively practicable. Such determinations, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent auditor (the “Auditor”) selected by the Company, all of whose fees and expenses shall be borne and directly paid solely by the Company. The Auditor shall provide a written report of its determinations, including detailed supporting calculations, both to the Executive and to the Company. If the Auditor determines that no Excise Tax is payable with respect to the Executive’s Payments, either as a result of any Required Reduction the Auditor has determined should be made thereto or because the Auditor has determined that no Required Reduction must be made thereto, the written report which the auditor furnishes to the Executive and to the Company pursuant to the preceding sentence shall be accompanied by an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Executive’s Payments. Except as otherwise provided in Section 8(e) or Section 8(f) below, the determinations made by the Auditor pursuant to this Section 8(d) shall be binding upon the Executive and the Company and its Affiliates. (e) If, notwithstanding (i) any determination made pursuant to Section 8(d) above that a reduction in the Executive’s Payments is not required pursuant to Section 8(a) above or (ii) any reduction in the Executive’s Payments made pursuant to Section 8(a) above, the United States Internal Revenue Service (the “IRS”) subsequently asserts that the Executive is liable for the benefit Excise Tax with respect to such Payments, the Payments then remaining to be paid or provided to the Executive shall be reduced as provided in Sections 8(a) and 8(b) above or shall be further reduced as provided in Section 8(a) above, and (if still necessary after such reduction or further reduction) any Payments already made to the Executive shall be repaid to the Company or its Affiliates, to the extent necessary to eliminate the Excise Tax asserted by the IRS to be payable by the Executive. Any such reduction or further reduction or repayment (i) shall be made only if the IRS agrees that such reduction or further reduction or repayment will be effective to avoid the imposition of any Excise Tax with respect to the Executive’s Payments as so reduced or repaid and agrees not to impose such Excise Tax against the Executive if such reduction or further reduction or repayment is made, and (ii) shall be made in the manner described in Section 8(c) above. (f) Notwithstanding anything to the contrary in the foregoing provisions of this Section 8, if (i) the Executive’s Payments have been reduced pursuant to Section 8(a) above and the IRS nevertheless subsequently determines that Excise Tax is payable with respect to the Executive’s Payments, and (ii) if the After Tax Amount of the Payments payable to the Executive, whether paid determined without any further reduction or repayment as provided in Section 8(e) above, and without any initial reduction as provided in Section 8(a) above, would exceed the After Tax Amount of the Payments payable to the Executive as reduced in accordance with Section 8(a), then (A) no such further reduction or distributed or distributable repayment shall be made with respect to the Executive’s Payments pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreementSection 8(e) above, policy, plan, program or arrangement, including without limitation any restricted stock award, stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing and (the “Payments”B) is subject to the excise tax imposed by Section 4999 of the Code, (the “Excise Tax”), except as provided below, the Company or its Affiliate shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of itemized deductions and personal exemptions attributable to the Gross-Up Payment, shall be equal to the Paymentsreduction in the Executive’s Payments that was initially made pursuant to Section 8(a). The Gross-Up Payment Such amount shall be paid to the Executive within 30 days of the determination that the Excise Tax is applicable; provided that, the Gross-Up Payment shall in all events be paid a cash lump sum by no later than the end fifteenth (15th) day of the Executive’s taxable year next third (3rd) month following the Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service. Notwithstanding the foregoing provisions close of this Section 9(c), if it shall be determined that the Executive is entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 6(a)(i)(3) and next by reducing the amount of any other cash payments due to the Executive and finally by amending or terminating any equity-based awards held by the Executive. (d) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to the Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services rendered (within the meaning of Section 280G(b)(4)(B) of the Code and the regulations thereunder and (including any restraints on employment) in excess of the base amount (as defined in Section 280G(b)(3) of the Code) (the “Base Amount”) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the accounting firm selected by the Company or the Tax Counsel and reasonably acceptable to the Executive (the “Auditor”) in accordance with the principles of Sections 280G(d)(3) and (4) of the Code and applicable guidance under Treasury Regulation Section 1.280G-1, and U.S. Treasury Department rulings and releases. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purpose of Sections 9(c) and (d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (e) If the IRS makes its final determination that Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax due with respect to the Executive’s Payments, provided that by such day the Executive has paid the Excise Tax so determined to be due. (g) For purposes of the foregoing, the following terms shall have the following respective meanings:

Code Section 280G. (a) If after any payment or benefit due under this Agreement, together with all other payments and benefits that the Effective Date, there occurs a transaction that constitutes a “change of control” of Executive receives or is entitled to receive from the Company under Treas. Reg. Section 1.280G andor any of its subsidiaries, immediately prior to such transaction the stock affiliates or related entities, would (if paid or provided) constitute an excess parachute payment for purposes of the Company is not publicly traded and the exemption described in Section 280G(b)(5) of the Code would apply to payments by the Company to the Executive in connection with a change of control (as defined in Section 280G of the Code and the regulations) to the extent the Company so requestsCode, the amounts otherwise payable and benefits otherwise due under this Agreement, or the Executive shall cooperate with is entitled to receive from the Company in good faith in connection with the Company satisfying the shareholder approval exemption under Section 280G(b)(5) Company, any of the Code and the regulations thereunder. (b) If after the Effective Dateits subsidiaries, there occurs a transaction that constitutes a “change of control” of the Company under Treas. Reg. Section 1.280G andaffiliates or related entities, will either (i) the Company does not request the Executive to cooperate be delivered in connection with satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code full, or (ii) be limited to the minimum extent necessary to ensure that no portion thereof will fail to be tax-deductible to the Company is publicly traded and such exemption would not apply to payments by the Company to the Executive in connection with a change in control, then the provisions reason of Sections 9(c) through (f) below shall apply. (c) If it is reasonably determined that any payment or distribution by the Company or any affiliate Section 280G of the Company to Code, whichever of the foregoing amounts, taking into account the applicable federal, state or for local income and employment taxes and the benefit excise tax imposed under Section 4999 of the Code, results in the receipt by 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 agreementon an after-tax basis, policy, plan, program or arrangement, including without limitation any restricted stock award, stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (the “Payments”) is greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and/or benefits may be subject to the excise tax imposed by under Section 4999 of the Code, (the “Excise Tax”), except as provided below, the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of itemized deductions and personal exemptions attributable to the Gross-Up Payment, shall be equal to the Payments. The Gross-Up Payment shall be paid to the Executive within 30 days of the determination that the Excise Tax is applicable; provided that, the Gross-Up Payment shall in all events be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service. Notwithstanding the foregoing provisions of this Section 9(c), if it shall be determined that the Executive is entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 6(a)(i)(3) and next by reducing the amount of any other cash payments due to the Executive and finally by amending or terminating any equity-based awards held by the Executive. (d) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to the Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services rendered (within the meaning of Section 280G(b)(4)(B) of the Code and the regulations thereunder and (including any restraints on employment) in excess of the base amount (as defined in Section 280G(b)(3) of the Code) (the “Base Amount”) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the accounting firm selected by the Company or the Tax Counsel and reasonably acceptable to the Executive (the “Auditor”) in accordance with the principles of Sections 280G(d)(3) and (4) of the Code and applicable guidance under Treasury Regulation Section 1.280G-1, and U.S. Treasury Department rulings and releases. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purpose of Sections 9(c) and (d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (e) If the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined payments and/or benefits are to exceed be reduced pursuant to this subparagraph G, such payments and benefits shall be reduced such that the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason reduction of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment such payments and/or benefits to the Executive as a result of this subparagraph G is minimized. In applying this principle, the reduction shall be made in respect 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 excess (plus any interest, penalties or additions payable amounts shall be reduced on a pro rata basis but not below zero. All determinations required to be made under this subparagraph G shall be made by the Company’s independent public accounting firm which shall provide detailed supporting calculations both to the Company and the Executive with respect to such excess) within five fifteen (515) business days following of the receipt of notice from the Executive that there has been a payment or benefit subject to this subparagraph G, or such earlier time that as is requested by the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the PaymentsCompany.

Code Section 280G. (a) If after the Effective Date, there occurs a transaction that constitutes a “change of control” of the Company under Treas. Reg. Section 1.280G and, immediately prior to such transaction the stock of the Company is not publicly traded and the exemption described in Section 280G(b)(5) of the Code would apply to payments by the Company to the Executive in connection with a change of control (as defined in Section 280G of the Code and the regulations) to the extent the Company so requests, the Executive shall cooperate with the Company in good faith in connection with the Company satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code and the regulations thereunder. (b) If after the Effective Date, there occurs a transaction that constitutes a “change of control” of the Company under Treas. Reg. Section 1.280G and, either (i) the Company does not request the Executive to cooperate in connection with satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code or (ii) the Company is publicly traded and such exemption would not apply to payments by the Company to the Executive in connection with a change in control, then the provisions of Sections 9(c) through (f) below shall apply. (c) If it is reasonably determined that any payment or distribution by the Company or any affiliate of 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 restricted stock award, stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (the “Payments”) is subject to the excise tax imposed by Section 4999 of the Code, (the “Excise Tax”), except as provided below, the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of itemized deductions and personal exemptions attributable to the Gross-Up Payment, shall be equal to the Payments. The Gross-Up Payment shall be paid to the Executive within 30 days of the determination that the Excise Tax is applicable; provided that, the Gross-Up Payment shall in all events be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service. Notwithstanding the foregoing provisions of this Section 9(c), if it shall be determined that the Executive is entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 6(a)(i)(3) and next by reducing the amount of any other cash payments due to the Executive and finally by amending or terminating the awards described under Section 4(c) and any other equity-based awards held by the Executive. (d) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to the Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services rendered (within the meaning of Section 280G(b)(4)(B) of the Code and the regulations thereunder and (including any restraints on employment) in excess of the base amount (as defined in Section 280G(b)(3) of the Code) (the “Base Amount”) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the accounting firm selected by the Company or the Tax Counsel and reasonably acceptable to the Executive (the “Auditor”) in accordance with the principles of Sections 280G(d)(3) and (4) of the Code and applicable guidance under Treasury Regulation Section 1.280G-1, and U.S. Treasury Department rulings and releases. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purpose of Sections 9(c) and (d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (e) If the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Payments.

Code Section 280G. (a) If If, after the Effective DateTime, none of the Company or any of its consolidated subsidiaries are an entity whose stock is readily tradable on an established securities market (or otherwise) and a “change of control” under Regulation 1.280G of the Internal Revenue Code of 1986, as amended (the “Code”) occurs, you and the Company shall cooperate and use commercially reasonable best efforts to take such actions as may be necessary to avoid the imposition of the excise tax imposed by Section 4999 of the Code or a loss of deductibility under Section 280G of the Code, including without limitation your agreement to waive the accelerated vesting, lapse of restrictions or payment of any such payments and benefits and the Company seeking to obtain stockholder approval in accordance with the terms of Section 280G(b)(5). (b) If, after the Effective Time, there occurs a transaction that constitutes a “change of control” under Regulation 1.280G of the Company under Treas. Reg. Section 1.280G Code and, immediately prior to the consummation of such transaction the stock of the Company is not publicly traded and the exemption described in Section 280G(b)(5) of the Code would apply to payments by the Company to the Executive in connection with a change of control (as defined in Section 280G of the Code and the regulations) to the extent the Company so requests, the Executive shall cooperate with the Company in good faith in connection with the Company satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code and the regulations thereunder. (b) If after the Effective Date, there occurs a transaction that constitutes a “change of control” of , the Company under Treas. Reg. Section 1.280G andor any of its consolidated subsidiaries are an entity whose equity securities are readily tradable on an established securities market (or otherwise), either (i) the Company does not request the Executive to cooperate in connection with satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code or (ii) the Company is publicly traded and such exemption would not apply to payments by the Company to the Executive in connection with a change in control, then the following provisions of Sections 9(c) through (f) below shall will apply.: (c1) If it is reasonably determined that any payment payments or distribution benefits provided or to be provided by the Company or any affiliate of the Company its affiliates to you or for the your 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 restricted stock award, stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (the “Covered Payments”) is constitute parachute payments within the meaning of Section 280G of the Code (“Parachute Payments”) and would, but for this Section 11(b), be subject to the excise tax imposed by under Section 4999 of the CodeCode (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”), except as provided below, then the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of itemized deductions and personal exemptions attributable to the Gross-Up Payment, shall be equal to the Payments. The Gross-Up Payment shall be paid to the Executive within 30 days of the determination that the Excise Tax is applicable; provided that, the Gross-Up Payment shall in all events be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service. Notwithstanding the foregoing provisions of this Section 9(c), if it shall be determined that the Executive is entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 6(a)(i)(3) and next by reducing the amount of any other cash payments due to the Executive and finally by amending or terminating any equity-based awards held by the Executive. (d) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Covered Payments shall be treated as “parachute payments” payable either (within A) in full or (B) reduced to the meaning of Section 280G(b)(2) minimum extent necessary to ensure that no portion of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to the Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services rendered (within the meaning of Section 280G(b)(4)(B) of the Code and the regulations thereunder and (including any restraints on employment) in excess of the base amount (as defined in Section 280G(b)(3) of the Code) (the “Base Amount”) allocable to such reasonable compensation, or are otherwise not Covered Payments is subject to the Excise Tax, whichever of the foregoing results in your receipt on an after-tax basis of the greatest amount of benefits after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (iii) including the value Excise Tax). If required to be reduced pursuant to the foregoing, the Covered Payments shall be reduced in a manner consistent with the requirements of Section 409A of the Code, to the extent applicable, and where two or more economically equivalent amounts are subject to reduction but payable at different times, such amounts payable at the later time shall be reduced first but not below zero. If the Covered Payments are paid in full, you will be solely responsible for the payment of any noncash benefits or any deferred payment or benefit Excise Tax and the Company will have no further obligations with respect thereto. (2) Any determinations required under this Section 11(b) shall be determined by the accounting firm selected made in writing by the Company or the Tax Counsel by an accounting firm selected and reasonably acceptable to the Executive (the “Auditor”) in accordance with the principles of Sections 280G(d)(3) and (4) of the Code and applicable guidance under Treasury Regulation Section 1.280G-1, and U.S. Treasury Department rulings and releases. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated paid for purpose of Sections 9(c) and (d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (e) If the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to by the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), You shall provide the Company shall make an additional Gross-Up Payment to the Executive in respect of with such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. The Executive information and documents as the Company shall each may reasonably cooperate with the other request in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect order to the Paymentsmake a determination under this Section 11.