Common use of Code Section 280G Clause in Contracts

Code Section 280G. If any payment or benefit received or to be received by Executive in connection with a “change in ownership or control” of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Notwithstanding any payment provision in this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection either alone or together with a “change in ownership other payments or control” of benefits which Executive receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code)") and/or any corresponding and applicable state law provision, whether such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to the terms Section 9 of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof of such payments shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided, however, that such reduction shall only be made if, by reason of such reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 1214, “"net after-after tax benefit” " shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive Code and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive any corresponding and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute paymentsapplicable state law provision.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If (a) Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment amount payable to or other benefit receivable by Executive hereunder, including, without limitation, any excise tax imposed by Section 4999 of the Code; provided, however, that any such amount or benefit received or deemed to be a Parachute Payment (as defined below) alone or when added to any other amount payable or paid to or other benefit receivable or received by Executive in connection with which is deemed to constitute a “change in ownership Parachute Payment (whether or control” of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other not under an existing plan, arrangement or agreement with other agreement), and would result in the Company or imposition on Executive of an affiliate excise tax under Section 4999 of the Company Code (the all such amounts and benefits being hereinafter called “Total Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to received by Executive shall exceed the net after-tax benefit to received by Executive if no such reduction was made. For purposes of this Section 123.3, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the CodeParachute Payments, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing)) and the amount of applicable employment taxes, less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt For purposes of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 123.3, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.“

Code Section 280G. If any payment or benefit received or to be received by Executive in connection with a “change in ownership or control” of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his her sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Notwithstanding any payment provision of this Agreement to ----------------- the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection pursuant to this Agreement either alone or together with a “change in ownership other payments or control” of benefits which Executive receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute a "parachute payment" within the meaning of Section 280G of the Code)Internal Revenue Code of 1986, whether payable pursuant to the terms of this Agreement as amended (or any other plan, arrangement or agreement with successor section) and the Company or an affiliate of the Company regulations promulgated thereunder (the “Payments”)"Code") and/or any corresponding and ---- applicable state law provision, would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to this Agreement to the extent necessary so that no portion thereof of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such -------- ---- reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 12paragraph, “"net after---- after tax benefit” " shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or ----------------- realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal margin individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.* * * * *

Code Section 280G. If (i) Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with a “change in ownership or control” of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e)) whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part) by the Company, an affiliate or Person making such payment or providing such benefit as a result of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement), the cash Severance Payments shall first be reduced (if necessary, to zero), and all other Severance Payments shall thereafter be reduced (if necessary, to zero); provided, however, that the Executive may elect to have the noncash Severance Payments reduced (or eliminated) prior to any reduction of the cash Severance Payments. (ii) For purposes of this limitation, (A) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a "payment" within the meaning of section 280G(b) of the Code shall be taken into account, (B) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the Company's accounting firm which (or, in the case of a payment following a Change in Control the accounting firm that was, immediately prior to the Change in Control, the Company's independent auditor) (the "Auditor"), does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (C) the Severance Payments shall be reduced only to the extent necessary so that no portion thereof shall be subject the Total Payments (other than those referred to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean in clause (iA) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would (B)) in their entirety constitute “parachute payments” reasonable compensation for services actually rendered within the meaning of Section section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions by reason of section 280G of the Code, less in the opinion of Tax Counsel, and (iiD) the amount value of all federal, state and local income taxes payable with respect to any noncash benefit or any deferred payment or benefit included in the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing Total Payments shall be paid to Executive determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii4) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection pursuant to this Agreement either alone or together with a “change in ownership other payments or control” of benefits which Executive receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an "EXCESS PARACHUTE PAYMENT" within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether payable pursuant such payments or benefits provided to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments Executive shall be reduced by reducing the amount of payments or benefits payable to Executive to the extent necessary so that no portion thereof of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 12paragraph, “net after-tax benefit” "NET AFTER TAX BENEFIT" shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive Code and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive any corresponding and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute paymentsapplicable state law provision.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If (i) Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with a “change in ownership or control” of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e)) whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments")would not be deductible (in whole or part) by the Company, an affiliate or Person making such payment or providing such benefit as a result of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement), the cash Severance Payments shall first be reduced (if necessary, to zero), and all other Severance Payments shall thereafter be reduced (if necessary, to zero); provided, however, that the Executive may elect to have the noncash Severance Payments reduced (or eliminated) prior to any reduction of the cash Severance Payments. (ii) For purposes of this limitation, (A) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a "payment" within the meaning of section 280G(b) of the Code shall be taken into account, (B) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the Company's accounting firm which (or, in the case of a payment following a Change in Control the accounting firm that was, immediately prior to the Change in Control, the Company's independent auditor) (the "Auditor"),does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (C) the Severance Payments shall be reduced only to the extent necessary so that no portion thereof shall be subject the Total Payments (other than those referred to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean in clause (iA) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would or(B)) in their entirety constitute “parachute payments” reasonable compensation for services actually rendered within the meaning of Section section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions by reason of section 280G of the Code, less in the opinion of Tax Counsel, and (iiD) the amount value of all federal, state and local income taxes payable with respect to any noncash benefit or any deferred payment or benefit included in the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing Total Payments shall be paid to Executive determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii4) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If any payment or benefit received or to be received by Executive in connection with a “"change in ownership or control” " of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”"PAYMENTS"), would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section SECTION 12, “"net after-tax benefit” " shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “"parachute payments” " within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the codeCode. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”"ACCOUNTING FIRM") selected by Executive and reasonably acceptable to the Company, providedPROVIDED, that the Accounting Firm’s 's determination shall be made based upon “"substantial authority” " within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s 's best interest to waive the receipt of any or all amounts which may constitute “"excess parachute payments.” " If the Accounting Firm determines that such reduction is required by this Section SECTION 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section SECTION 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section SECTION 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or realized by an 2006 Director Investor pursuant to be received by Executive in connection this Agreement either alone or together with a “change in ownership other payments or control” of benefits which 2006 Director Investor receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an “excess parachute payment” within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether such payments or benefits provided to 2006 Director Investor shall be reduced by reducing the amount of payments or benefits payable to 2006 Director Investor to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such reduction, 2006 Director Investor’s net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this paragraph, “net after tax benefit” shall mean the sum of (i) the total amount received or realized by 2006 Director Investor pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean plus (iii) the total of all other payments and the value of all or benefits which Executive 2006 Director Investor receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a “parachute paymentspayment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to Executive realized by 2006 Director Investor (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable Notwithstanding any other agreements or arrangements to the Companycontrary, provided, that this Section 13 sets forth the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive 2006 Director Investors’ sole and exclusive rights with regard to the Company with and its determinations and detailed supporting calculations with respect thereto at least 15 business days prior Subsidiaries relating to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this potential tax treatment under Section 12, Executive, in his sole 280G and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, Code and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies any corresponding state law provisions of any books, records, and documents in the possession of Executive payments or the Company, as the case may be, reasonably requested benefits realized by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by an 2006 Director Investor under this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by ExecutiveAgreement.

Code Section 280G. If any payment or benefit received or to be received by Executive in connection with a “change in ownership or control” of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the codeCode. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s 's determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s 's best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his her sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 5,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Notwithstanding any payment provision of this Agreement to ----------------- the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection pursuant to this Agreement either alone or together with a “change in ownership other payments or control” of benefits which Executive receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute a "parachute payment" within the meaning of Section 280G of the Code)Internal Revenue Code of 1986, whether payable pursuant to the terms of this Agreement as amended (or any other plan, arrangement or agreement with successor section) and the Company or an affiliate of the Company regulations promulgated thereunder (the “Payments”)"Code") and/or any corresponding and ---- applicable state law provision, would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to this Agreement to the extent necessary so that no portion thereof of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such -------- ---- reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 12paragraph, “"net after---- after tax benefit” " shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or ----------------- realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.* * * * *

Code Section 280G. If any payment or benefit received or to be received by Executive in connection with a “"change in ownership or control” " of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “"Payments”"), would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “"net after-tax benefit” " shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “"parachute payments” " within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the codeCode. The foregoing determination will be made by a nationally recognized accounting firm (the “"Accounting Firm”") selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s 's determination shall be made based upon “"substantial authority” " within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s 's best interest to waive the receipt of any or all amounts which may constitute “"excess parachute payments.” " If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 5,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Notwithstanding any payment provision in this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection either alone or together with a “change in ownership other payments or control” of benefits which Executive receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code)") and/or any corresponding and applicable state law provision, whether such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to the terms Section 11 of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof of such payments shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided, however, that such reduction shall only be made if, by reason of such reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 1216, “"net after-after tax benefit” " shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive Code and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive any corresponding and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute paymentsapplicable state law provision.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or realized by an 2006 Employee Investor pursuant to be received by Executive in connection this Agreement either alone or together with a “change in ownership other payments or control” of benefits which 2006 Employee Investor receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an “excess parachute payment” within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether such payments or benefits provided to 2006 Employee Investor shall be reduced by reducing the amount of payments or benefits payable to 2006 Employee Investor to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such reduction, 2006 Employee Investor’s net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this paragraph, “net after tax benefit” shall mean the sum of (i) the total amount received or realized by 2006 Employee Investor pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean plus (iii) the total of all other payments and the value of all or benefits which Executive 2006 Employee Investor receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a “parachute paymentspayment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to Executive realized by 2006 Employee Investor (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable Notwithstanding any other agreements or arrangements to the Companycontrary, provided, that this Section 13 sets forth the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive 2006 Employee Investors’ sole and exclusive rights with regard to the Company with and its determinations and detailed supporting calculations with respect thereto at least 15 business days prior Subsidiaries relating to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this potential tax treatment under Section 12, Executive, in his sole 280G and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, Code and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies any corresponding state law provisions of any books, records, and documents in the possession of Executive payments or the Company, as the case may be, reasonably requested benefits realized by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by an 2006 Employee Investor under this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by ExecutiveAgreement.

Code Section 280G. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or realized by the 2008 Employee Investor pursuant to be received by Executive in connection this Agreement either alone or together with a “change in ownership other payments or control” of benefits which 2008 Employee Investor receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an “excess parachute payment” within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether such payments or benefits provided to 2008 Employee Investor shall be reduced by reducing the amount of payments or benefits payable to 2008 Employee Investor to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such reduction, 2008 Employee Investor’s net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this paragraph, “net after tax benefit” shall mean the sum of (i) the total amount received or realized by 2008 Employee Investor pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean plus (iii) the total of all other payments and the value of all or benefits which Executive 2008 Employee Investor receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a “parachute paymentspayment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to Executive realized by 2008 Employee Investor (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable Notwithstanding any other agreements or arrangements to the Companycontrary, provided, that this Section 13 sets forth the Accounting Firm2008 Employee Investor’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive sole and exclusive rights with regard to the Company with and its determinations and detailed supporting calculations with respect thereto at least 15 business days prior Subsidiaries relating to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this potential tax treatment under Section 12, Executive, in his sole 280G and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, Code and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies any corresponding state law provisions of any books, records, and documents in the possession of Executive payments or the Company, as the case may be, reasonably requested benefits realized by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by 2008 Employee Investor under this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by ExecutiveAgreement.