Common use of Golden Parachute Taxes Clause in Contracts

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment to the contrary, to the extent that payments and benefits provided under this Amendment to Executive and benefits provided to, or for the benefit of, Executive under any other Company plan or agreement (such payments or benefits are collectively referred to as the "Payments") would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 1.4, "net after-tax benefit" shall mean (a) the Payments 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 (b) 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 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 (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the "Accounting Firm") selected by the Company (which may be, but will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive and the Company within fifteen (15) days after the date of termination of his employment. If the Accounting Firm determines that such reduction is required by this Section 1.4, the Executive, in his sole and absolute discretion, may determine which 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 him. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 1.4 will be borne by the Company.

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment to In the contrary, to event that any of the extent that payments and benefits provided under this Amendment to Executive and benefits provided to, or for the benefit of, Executive under any other Company plan or agreement by this Agreement (such payments or benefits are collectively referred to as the "Payments"A) would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 1.4, "net after-tax benefit" shall mean (a) the Payments 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 or any comparable successor provisions, and (bB) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate but for each year in which the foregoing shall be paid 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 (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the "Accounting Firm") selected by the Company (which may be, but will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive and the Company within fifteen (15) days after the date of termination of his employment. If the Accounting Firm determines that such reduction is required by this Section 1.4, the Executive, in his sole and absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall paragraph would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s benefits hereunder shall be either (1) provided to Executive in full, or (2) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts (when taking into account applicable federal, state, local and foreign income and employment taxes, the Company Excise Tax, and any other applicable taxes) results in the receipt by Executive of the greatest amount of benefits, on an after-tax basis, notwithstanding that all or some portion of such benefits may be subject to payment of an Excise Tax. Unless Employer and Executive agree otherwise in writing, any determination required under this Section 4(j) shall pay be made in writing in good faith by a mutually determined and qualified third party (the “Professional Service Firm”). Any reduction in payments and/or benefits required shall occur in the following order: (1) reduction of cash payments; and (2) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such reduced amount acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive’s equity awards. For purposes of making the calculations required by this Section 4(j), the Professional Service Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. Employer and Executive shall furnish to himthe Professional Service Firm such information and documents as the Professional Service Firm may reasonably request in order to make a determination under this Section 4(j). The fees Employer shall bear all costs and expenses of the Accounting Professional Service Firm for its services may reasonably incur in connection with the determinations and any calculations contemplated by this Section 1.4 will be borne by the Company4(j)(i).

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment to In the contraryevent that any payment or distribution by the Company, or the grant of any benefit by the Company, to the extent that payments and benefits provided under this Amendment to Executive and benefits provided to, or for the benefit ofof Employee (whether paid or payable, Executive under any other Company plan distributed or agreement distributable or granted or to be granted pursuant to the terms of this Agreement or otherwise) (such payments or benefits are collectively referred to as the "Payments"collectively, “Benefits”) would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax, but only if, nondeductible by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 1.4, "net after-tax benefit" shall mean (a) the Payments which Executive receives or is then entitled to receive from the Company that would constitute "parachute payments" within the meaning for federal income tax purposes because of Section 280G of the Internal Revenue Code (the “Code”) and/or would cause Employee to be liable for an excise tax pursuant to Section 4999 of the Code, less then the Benefits paid, distributed or granted to Employee under this Agreement shall equal (bi) the full amount of all federalsuch Benefits or (ii) the Reduced Amount (as defined below), state and local income taxes payable with respect to whichever of the foregoing calculated at amounts is determined by the maximum marginal income Company to result, on an after-tax rate for each year in which the foregoing shall be paid Executive (based on the rate in effect for such year as set forth basis, in the Code as in effect at the time receipt by Employee of the first payment greatest amount of such Benefits, notwithstanding that all or some portion of the foregoing), less (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Benefits may be taxable under Section 4999 of the Code. The foregoing In making its determination will be made by a nationally recognized accounting firm (pursuant to the "Accounting Firm") selected by preceding sentence, the Company (which may beshall take into account all applicable Federal, but will not be required to bestate, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive local employment and the Company within fifteen (15) days after the date of termination of his employment. If the Accounting Firm determines that such reduction is required by this Section 1.4income taxes, the Executive, in his sole and absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to as well as the excise tax imposed by Section 4999 of the Code. For purposes of this Section 4, the “Reduced Amount” shall be the maximum amount payable to Employee that would result in no portion of the Benefits being (i) nondeductible by the Company under Section 280G of the Code or (ii) subject to an excise tax liability under Section 4999 of the Code. Notwithstanding the foregoing and any other provision contained herein, in the event (as a result of Benefits to be received under this Agreement or any other plan or arrangement between the Employee and the Company shall pay such reduced amount to him. The fees and expenses Company) of any required reduction, as a result of Section 4999 of the Accounting Firm for its services in connection with the determinations and calculations contemplated Code, of Benefits to be received by Employee, reduction shall be made from such other plan or arrangement prior to any reduction relating to Benefits to be received by Employee under this Section 1.4 will be borne by the CompanyAgreement.

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment to In the contraryevent that any payment or distribution by the Company, or the grant of any benefit by the Company, to the extent that payments and benefits provided under this Amendment to Executive and benefits provided to, or for the benefit ofof Employee (whether paid or payable, Executive under any other Company plan distributed or agreement distributable or granted or to be granted pursuant to the terms of this Agreement or otherwise) (such payments or benefits are collectively referred to as the collectively, "PaymentsBenefits") would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax, but only if, nondeductible by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 1.4, "net after-tax benefit" shall mean (a) the Payments which Executive receives or is then entitled to receive from the Company that would constitute "parachute payments" within the meaning for federal income tax purposes because of Section 280G of the Internal Revenue Code (the "Code") and/or would cause Employee to be liable for an excise tax pursuant to Section 4999 of the Code, less then the Benefits paid, distributed or granted to Employee under this Agreement shall equal (bi) the full amount of all federalsuch Benefits or (ii) the Reduced Amount (as defined below), state and local income taxes payable with respect to whichever of the foregoing calculated at amounts is determined by the maximum marginal income Company to result, on an after-tax rate for each year in which the foregoing shall be paid Executive (based on the rate in effect for such year as set forth basis, in the Code as in effect at the time receipt by Employee of the first payment greatest amount of such Benefits, notwithstanding that all or some portion of the foregoing), less (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Benefits may be taxable under Section 4999 of the Code. The foregoing In making its determination will be made by a nationally recognized accounting firm (pursuant to the "Accounting Firm") selected by preceding sentence, the Company (which may beshall take into account all applicable Federal, but will not be required to bestate, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive local employment and the Company within fifteen (15) days after the date of termination of his employment. If the Accounting Firm determines that such reduction is required by this Section 1.4income taxes, the Executive, in his sole and absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to as well as the excise tax imposed by Section 4999 of the Code. For purposes of this Section 4, the "Reduced Amount" shall be the maximum amount payable to Employee that would result in no portion of the Benefits being (i) nondeductible by the Company under Section 280G of the Code or (ii) subject to an excise tax liability under Section 4999 of the Code. Notwithstanding the foregoing and any other provision contained herein, in the event (as a result of Benefits to be received under this Agreement or any other plan or arrangement between the Employee and the Company shall pay such reduced amount to him. The fees and expenses Company) of any required reduction, as a result of Section 4999 of the Accounting Firm for its services in connection with the determinations and calculations contemplated Code, of Benefits to be received by Employee, reduction shall be made from such other plan or arrangement prior to any reduction relating to Benefits to be received by Employee under this Section 1.4 will be borne by the CompanyAgreement.

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment Agreement to the contrary, to the extent that payments and benefits provided under this Amendment Agreement to Executive and benefits provided to, or for the benefit of, Executive under any other Company plan or agreement (such payments or benefits of, Executive under any other Company plan or agreement (such payments or benefits are collectively referred to as the "Payments") would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 1.42.4, "net after-tax benefit" shall mean (a) the Payments 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 (b) 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 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 (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the "Accounting Firm") selected by the Company (which may be, but will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive and the Company within fifteen (15) days after the date of termination of his employment. If the Accounting Firm determines that such reduction is required by this Section 1.42.4, the Executive, in his sole and absolute discretion, may determine which 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 him. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations calculation contemplated by this Section 1.4 2.4 will be borne by the Company.

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment letter agreement to the contrary, to the extent that payments and benefits provided to you under this Amendment to Executive letter agreement and benefits provided toto you, or for the benefit ofyour benefit, Executive under any other Company plan or agreement (such payments or benefits are collectively referred to as the "“Payments"”) would be subject to the excise tax (the "“Excise Tax"”) imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive you shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive you receive shall exceed the net after-tax benefit received by him you receive if no such reduction was made. For purposes of this Section 1.44(e), "“net after-tax benefit" ” shall mean (a) the Payments which Executive receives you receive or is then entitled to receive from the Company that would constitute "“parachute payments" ” within the meaning of Section 280G of the Code, less (b) 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 Executive to you (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 (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the "“Accounting Firm"”) selected by the Company (which may be, but will not be required to be, the Company's ’s independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive you and the Company within fifteen (15) days after the date of termination of his your employment. If the Accounting Firm determines that such reduction is required by this Section 1.44(e), the Executiveyou, in his your sole and absolute discretion, may determine which 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 himyou. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 1.4 4 (e) will be borne by the Company.

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment Agreement to the contrary, to the extent that payments and benefits provided under this Amendment Agreement to Executive and benefits provided to, or for the benefit of, Executive under any other Company plan or agreement (such payments or benefits are collectively referred to as the "Payments") would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 1.42.4, "net after-tax benefit" shall mean (a) the Payments 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 (b) 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 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 (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the "Accounting Firm") selected by the Company (which may be, but will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive and the Company within fifteen (15) days after the date of termination of his employment. If the Accounting Firm determines that such reduction is required by this Section 1.42.4, the Executive, in his sole and absolute discretion, may determine which 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 him. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 1.4 2.4 will be borne by the Company.

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment Agreement to the contrary, to the extent that payments and benefits provided under this Amendment Agreement to Executive and benefits provided to, or for the benefit of, Executive under any other Company plan or agreement (such payments or benefits are collectively referred to as the "Payments") would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 1.42.3, "net after-tax benefit" shall mean (a) the Payments 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 (b) 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 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 (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Section 4999 of the Code. The foregoing determination will be made by the a nationally recognized accounting firm (the "Accounting Firm") selected by the Company (which may be, but will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive and the Company within fifteen (15) days after the his date of termination of his employment. If the Accounting Firm determines that such reduction is required by this Section 1.42.3, the Executive, in his sole and absolute discretion, may determine which 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 him. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 1.4 2.3 will be borne by the Company.

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment to the contrary, to the extent that payments and benefits provided under this Amendment to Executive and benefits provided to, or for the benefit of, Executive under any other Company plan or agreement (such payments or benefits are collectively referred to as the "Payments") would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 1.4, "net after-tax benefit" shall mean (a) the Payments 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 (b) 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 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 (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the "Accounting Firm") selected by the Company (which may be, but will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive and the Company within fifteen (15) days after the date of termination of his employment. If the Accounting Firm determines that such reduction is required by this Section 1.4, the Executive, in his sole and absolute discretion, may determine which 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 him. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 1.4 will be borne by the Company.Section

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment to (a) Best After-Tax Result. In the contrary, to the extent event that payments and benefits provided under this Amendment to Executive and benefits provided to, any payment or for the benefit of, Executive under any other Company plan received or agreement (such payments or benefits are collectively referred to as the "Payments") would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of pursuant to this Section 1.4, "net after-tax benefit" shall mean Agreement or otherwise (a“Payments”) the Payments which Executive receives or is then entitled to receive from the Company that would (i) constitute "a “parachute payments" payment” within the meaning of Section 280G of the Code, less and (bii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate but for each year in which the foregoing shall be paid Executive this subsection (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 foregoinga), less (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the "Accounting Firm") selected by the Company (which may be, but will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive and the Company within fifteen (15) days after the date of termination of his employment. If the Accounting Firm determines that such reduction is required by this Section 1.4, the Executive, in his sole and absolute discretion, may determine which 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, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of Section 6(b) hereof, such Payments shall be either (x) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (y) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local, and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section 6(a), Independent Tax Counsel may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that Independent Tax Counsel shall pay such reduced amount to himassume that Executive pays all taxes at the highest marginal rate. The fees Company and expenses of the Accounting Firm for its services Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Tax Counsel may reasonably incur in connection with the determinations and any calculations contemplated by this Section. In the event that Section 1.4 will 6(a)(ii)(B) above applies, then based on the information provided to Executive and the Company by Independent Tax Counsel, Executive may, in Executive’s sole discretion and within thirty (30) days of the date on which Executive is provided with the information prepared by Independent Tax Counsel, determine which and how much of the Payments (including the accelerated vesting of equity compensation awards) to be borne otherwise received by Executive shall be eliminated or reduced (as long as after such determination the value (as calculated by Independent Tax Counsel in accordance with the provisions of Sections 280G and 4999 of the Code) of the amounts payable or distributable to Executive equals the Reduced Amount). If the Internal Revenue Service (the “IRS”) determines that any Payment is subject to the Excise Tax, then Section 6(b) hereof shall apply, and the enforcement of Section 6(b) shall be the exclusive remedy to the Company.. (b)

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment to (a) Best After-Tax Result. In the contrary, to the extent event that payments and benefits provided under this Amendment to Executive and benefits provided to, any payment or for the benefit of, Executive under any other Company plan received or agreement (such payments or benefits are collectively referred to as the "Payments") would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of pursuant to this Section 1.4, "net after-tax benefit" shall mean Agreement or otherwise (a“Payments”) the Payments which Executive receives or is then entitled to receive from the Company that would (i) constitute "a “parachute payments" payment” within the meaning of Section 280G of the Code, less Code and (bii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate but for each year in which the foregoing shall be paid Executive this subsection (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 foregoinga), less (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the "Accounting Firm") selected by the Company (which may be, but will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive and the Company within fifteen (15) days after the date of termination of his employment. If the Accounting Firm determines that such reduction is required by this Section 1.4, the Executive, in his sole and absolute discretion, may determine which 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, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of Section 10, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in the Payments being $1.00 less than the amount at which any portion of the Payments would be subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, Independent Tax Counsel may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that Independent Tax Counsel shall pay such reduced amount to himassume that Executive pays all taxes at the highest marginal rate. The fees Company and expenses of the Accounting Firm for its services Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Tax Counsel may reasonably incur in connection with the determinations and any calculations contemplated by this Section. In the event that Section 1.4 9(a)(ii)(B) above applies, then based on the information provided to Executive and the Company by Independent Tax Counsel, the cutback described hereunder will apply as to compensation not subject to Section 409A of the Code prior to compensation subject to Section 409A of the Code and will otherwise apply on a reverse chronological basis from payments latest in time. If the Internal Revenue Service (the “IRS”) determines that any Payment is subject to the Excise Tax, then Section 9(b) hereof shall apply, and the enforcement of Section 9(b) shall be borne by the exclusive remedy to the Company.

Golden Parachute Taxes. Notwithstanding anything contained in this Amendment to In the contraryevent that any payment or distribution by the Company, or the grant of any benefit by the Company, to the extent that payments and benefits provided under this Amendment to Executive and benefits provided to, or for the benefit ofof Executive (whether paid or payable, Executive under any other Company plan distributed or agreement distributable or granted or to be granted pursuant to the terms of this Agreement or otherwise) (such payments or benefits are collectively referred to as the collectively, "PaymentsBenefits") would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax, but only if, nondeductible by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 1.4, "net after-tax benefit" shall mean (a) the Payments which Executive receives or is then entitled to receive from the Company that would constitute "parachute payments" within the meaning for federal income tax purposes because of Section 280G of the Internal Revenue Code (the "Code") and/or would cause Executive to be liable for an excise tax pursuant to Section 4999 of the Code, less then the Benefits paid, distributed or granted to Executive under this Agreement shall equal (bi) the full amount of all federalsuch Benefits or (ii) the Reduced Amount (as defined below), state and local income taxes payable with respect to whichever of the foregoing calculated at amounts is determined by the maximum marginal income Company to result, on an after-tax rate for each year in which the foregoing shall be paid Executive (based on the rate in effect for such year as set forth basis, in the Code as in effect at the time receipt by Executive of the first payment greatest amount of such Benefits, notwithstanding that all or some portion of the foregoing), less (c) the amount of excise taxes imposed with respect to the payments and benefits described in (a) above by Benefits may be taxable under Section 4999 of the Code. The foregoing In making its determination will be made by a nationally recognized accounting firm (pursuant to the "Accounting Firm") selected by preceding sentence, the Company (which may beshall take into account all applicable Federal, but will not be required to bestate, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Executive local employment and the Company within fifteen (15) days after the date of termination of his employment. If the Accounting Firm determines that such reduction is required by this Section 1.4income taxes, the Executive, in his sole and absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to as well as the excise tax imposed by Section 4999 of the Code. For purposes of this Section 3, the "Reduced Amount" shall be the maximum amount payable to Executive that would result in no portion of the Benefits being (i) nondeductible by the Company under Section 280G of the Code or (ii) subject to an excise tax liability under Section 4999 of the Code. Notwithstanding the foregoing and any other provision contained herein, in the event (as a result of Benefits to be received under this Agreement or any other plan or arrangement between the Executive and the Company shall pay such reduced amount to him2. The fees and expenses 3 Company) of any required reduction, as a result of Section 4999 of the Accounting Firm for its services in connection with the determinations and calculations contemplated Code, of Benefits to be received by Executive, reduction shall be made from such other plan or arrangement prior to any reduction relating to Benefits to be received by Executive under this Section 1.4 will be borne by the CompanyAgreement.