Common use of Section 280G Matters Clause in Contracts

Section 280G Matters. If the benefits described in Sections 1 and 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants 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. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.

Section 280G Matters. If the benefits described in Sections 1 and Section 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants 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. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.

Section 280G Matters. If any of the benefits described in Sections 1 and 2 herein, as applicable, payable (the "Severance “CIC Payment"”) under this Agreement would otherwise constitute a parachute payment payments under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section 6(d) would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) receive the full amount of such benefits and pay the Excise Tax, or (ii) have the benefits reduced solely to such lesser the extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 6(d) will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 56(d), the Accountants 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. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 56(d). Any reduction in payments and/or benefits required by this Section 5 6(d) shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.:

Section 280G Matters. If the benefits described in Sections 1 and Section 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants 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. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; and (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.

Section 280G Matters. If the benefits described in Sections 1 and or 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree Company's independent public accountants (the "Accountants"), whose determination will shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsSection.

Section 280G Matters. If the benefits described in Sections 1 and 2 herein, as applicable, (the "Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants 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. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; and (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.

Section 280G Matters. If Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits described in Sections 1 and 2 herein, as applicable, provided or to be provided by the Company or its affiliates to Executive or for Executive’s benefit pursuant to the terms of this Agreement or otherwise (the "Severance Payment"“Covered Payments”) would otherwise constitute a parachute payment under payments (the “Parachute Payments”) within the meaning of Section 280G of the Internal Revenue Code of 1986and would, as amended (the "Code"), and but for this Section would be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the "“Excise Tax"”), Executive then prior to making the Covered Payments, a calculation shall either: be made comparing (i) pay the Net Benefit (as defined below) to Executive of the Covered Payments after payment of the Excise Tax, or Tax to (ii) have the benefits reduced Net Benefit to such lesser Executive if the Covered Payments are limited to the extent as would result in no portion of such benefits necessary to avoid being subject to the Excise Tax, whichever . Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the foregoing amountsCovered Payments is subject to the Excise Tax (that amount, taking into account the applicable “Reduced Amount”). “Net Benefit” shall mean the present value of the Covered Payments net of all federal, state state, local, foreign income, employment and local income taxes and excise taxes. The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, the Excise Tax, results reduction shall be made in a manner consistent with the receipt by Executive on an after-tax basis, requirements of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 409A of the Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. Unless the Company The calculations and Executive otherwise agree in writing, any determination required determinations under this Section 5 will shall be made in writing provided by a national "Big Four" an accounting firm selected by the Company or such other person or entity (and reasonably acceptable to which Executive) prior to the parties mutually agree applicable change in control transaction (the "Accountants"), whose determination will “Accounting Firm”) and the Company shall pay the cost of such Accounting Firm. The Accounting Firm shall provide such calculations prior to the consummation of the change in control transaction and its determinations shall be conclusive and binding upon on Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants 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. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsabsent manifest error.

Section 280G Matters. If  In the event that any payment that is either received by Executive or paid by the Employer or any of its Affiliates on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with the Employer or any other person whose payments or benefits described in Sections 1 and 2 herein, are treated as applicable, (the "Severance Payment") would otherwise constitute contingent on a parachute payment under Section 280G change of ownership or control of the Internal Revenue Code Employer (or in the ownership of 1986, as amended a substantial portion of the assets of the Employer) or any person affiliated with the Employer (or its Affiliates) or such person (but only if such payment or other benefit is in connection with Executive’s employment by the "Code"Employer) (collectively the “Employer Payments”), and but for this Section would will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Employer Payments, or (ii) a portion of the Employer Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income and employment taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxCode, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodeEmployer Payments. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which independent public accountant of the parties mutually agree Employer (the "“Accountants"”), whose determination will determination, absent manifest error, shall be conclusive and binding upon Executive and the Company for all purposespurposes upon the Employer and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company If there is a reduction of the Employer Payments pursuant to this Section 11, such reduction shall occur in accordance with Section 409A of the Code and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur following in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.:

Section 280G Matters. If To the benefits described in Sections 1 and 2 herein, as applicable, (extent necessary to avoid the "Severance Payment") would otherwise constitute a parachute payment under application of Section 280G of the Internal Revenue Code of 1986and the applicable final Treasury regulations and rulings thereunder, as amended (the "Code"), and but for this Section would be subject prior to the excise tax imposed by Closing, the Seller Parties shall cause the Companies, with respect to such payments or benefits that are reasonably likely to, separately or in the aggregate, without regard to the measures described herein, constitute “parachute payments” within the meaning of Section 4999 280G(b)(2) of the Code and the applicable final Treasury regulations and rulings thereunder (the "Excise Tax"“Section 280G Payments”), Executive shall either: to use reasonable best efforts to conduct a vote satisfying the requirements of Section 280G(b)(5) of the Code and the applicable final Treasury regulations and rulings thereunder, including reasonable best efforts to obtain waivers, from any “disqualified individual” (ias defined in Treasury Regulation Section 1.280G-1) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in that if such vote is successful then no portion of the Section 280G Payments will constitute a “parachute payment” and such benefits being subject to that the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion deduction of such benefits may Section 280G Payments will not be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing limited by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G(a) of the Code and the applicable final Treasury regulations and rulings thereunder. The Seller Parties shall cause the Companies to forward to Buyer, and allow Buyer to review and comment upon, prior to submission to the stockholders of the applicable Company, copies of all material documents prepared for purposes of complying with this Section 5.16 and shall consider any such comments in good faith. The Seller Parties shall indemnify Buyer for any deductions disallowed pursuant to Section 280G and 4999 of the CodeCode and the applicable final Treasury regulations and rulings thereunder. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with value of any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting deductions indemnifiable hereunder shall be cancelled in the reverse order calculated assuming a 35% tax rate. Table of the date of grant for Executive's equity awards.Contents

Section 280G Matters. If Notwithstanding any other provision of this Agreement to the contrary, in the event that any payment that is either received by Executive or paid by Company on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with Company or any other person whose payments or benefits described are treated as contingent on a change of ownership or control of Company (or in Sections 1 and 2 hereinthe ownership of a substantial portion of the assets of Company) or any person affiliated with Company or such person (but only if such payment or other benefit is in connection with Executive’s employment by Company) (collectively the “Company Payments”), as applicable, will be subject to the tax (the "Severance Payment"“Excise Tax”) would otherwise constitute a parachute payment under imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the "Code"and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Company Payments, or (ii) a portion of the Company Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Internal Revenue Code), whichever of clauses (i) and but for this Section would be subject to (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxInternal Revenue Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any Payments. Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the independent public accountant of Company or such other person or entity to which the parties mutually agree (the "“Accountants"”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposespurposes upon Company and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Internal Revenue Code. The If there is a reduction of the Company and the Executive shall furnish Payments pursuant to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any 11, such reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1A) reduction of any cash payments; severance payable by reference to Executive’s Base Salary or annual bonus, (2B) reduction of vesting acceleration of equity awards; any other cash amount payable to Executive, (C) any employee benefit valued as a “parachute payment,” and (3D) reduction of other benefits paid to Executive. In the event that acceleration of vesting of any outstanding equity awards is to be reducedaward. For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Company Payments are made to Executive after the application of the date cutback in this Section 11, which additional Company Payments result in the cutback no longer being applicable, Company shall pay Executive an additional amount equal to the value of grant for Executive's equity awardsthe Company Payments that were originally cutback. Company shall determine at the end of each calendar year whether any such restoration is necessary based on additional Company Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days following the last day of such calendar year. For the avoidance of doubt, in no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any Excise Tax, interest or penalties that may be imposed on the Company Payments by reason of the application of Section 280G or Section 4999 of the Internal Revenue Code.”

Section 280G Matters. If Prior to the benefits described in Sections 1 Closing, the Company shall submit to the Stockholders (and 2 herein, such other persons as applicable, (the "Severance Payment") would otherwise constitute a parachute payment may be required under Section 280G of the Internal Revenue Code and the Treasury Regulations thereunder), for approval by a vote of 1986, Stockholders (and such other persons as amended may be required under Section 280G of the Code and the Treasury Regulations thereunder) as is required pursuant to Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder (the "Code"“280G Stockholder Vote”), any such payments or other benefits that, separately or in the aggregate, would otherwise be “parachute payments” within the meaning of Section 280G of the Code and but the Treasury Regulations thereunder (the “280G Payments”), such that, if the 280G Stockholder Vote is received approving the 280G Payments, such 280G Payments shall not cause there to be “excess parachute payments” under Section 280G of the Code and the Treasury Regulations thereunder. Prior to such 280G Stockholder Vote, the Company shall obtain, from each person whom the Company reasonably believes to be with respect to the Company or any of its Affiliates a “disqualified individual” (as defined in Section 280G of the Code and the Treasury Regulations thereunder) and who would otherwise receive or have the right or entitlement to receive a 280G Payment, a written waiver (in form and substance reasonably satisfactory to Parent) pursuant to which such person agrees to waive any and all right or entitlement to such 280G Payment, to the extent such payment would cause any payment not to be deductible pursuant to Section 280G of the Code. Such waivers shall cease to have any force or effect with respect to any item covered thereby to the extent the 280G Stockholder Vote for such item is obtained. The Company shall provide to Parent any materials to be distributed to Stockholders pursuant to this Section would 7.6 within a reasonable period of time prior to distribution to Stockholders, and such materials shall be subject to the excise tax imposed by Section 4999 prior review and approval of Parent (such approval not to be unreasonably withheld, conditioned or delayed). Prior to the Code Closing Date, the Company shall deliver to Parent written certification that either (a) the "Excise Tax"), Executive shall either: (i) pay 280G Stockholder Vote was solicited and the Excise TaxStockholder approval was obtained with respect to any 280G Payments that were subject to the 280G Stockholder Vote, or (iib) have the benefits reduced to Stockholder approval of any 280G Payments was not obtained, and, as a consequence, such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will 280G Payments shall not be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity provided to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants 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. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.affected individual.‌

Section 280G Matters. If Notwithstanding any other provision of this Agreement to the benefits described in Sections 1 and 2 hereincontrary, as applicable, (if the "Severance Payment") would otherwise constitute a parachute payment under Section 280G event triggering for application of the Internal Revenue Code “Gross-Up Payment” provisions in Section 11(a) and (b) occurs after September 8, 2013, the provisions of 1986this Section 11(d) will apply. In the event that any payment that is either received by Executive or paid by the Employer on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with the Employer or any other person whose payments or benefits are treated as amended contingent on a change of ownership or control of the Employer (or in the "Code"ownership of a substantial portion of the assets of the Employer) or any person affiliated with the Employer or such person (but only if such payment or other benefit is in connection with Executive’s employment by the Employer) (collectively the “Employer Payments”), and but for this Section would will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Employer Payments, or (ii) a portion of the Employer Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxCode, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodeEmployer Payments. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which independent public accountant of the parties mutually agree Employer (the "“Accountants"”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposespurposes upon the Employer and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and If there is a reduction of the Executive shall furnish Employer Payments pursuant to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any 11, such reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1A) reduction of any cash payments; severance payable by reference to the Executive’s Base Salary or Annual Bonus, (2B) reduction of vesting acceleration of equity awards; any other cash amount payable to Executive, (C) any employee benefit valued as a “parachute payment,” and (3D) reduction of other benefits paid to Executive. In the event that acceleration of vesting of any outstanding equity awards is to be reducedaward. For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Employer Payments are made to Executive after the application of the date cutback in this Section 11, which additional Employer Payments result in the cutback no longer being applicable, the Employer shall pay Executive an additional amount equal to the value of grant for Executive's equity awardsthe Employer Payments that were originally cutback. The Employer shall determine at the end of each calendar year whether any such restoration is necessary based on additional Employer Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days of the last day of such calendar year. In no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Employer Payments by reason of the application of Section 280G or Section 4999 of the Code.

Section 280G Matters. If In the event that any payment that is either received by Executive or paid by the Employer or any of its Affiliates on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with the Employer or any other person whose payments or benefits described in Sections 1 and 2 herein, are treated as applicable, (the "Severance Payment") would otherwise constitute contingent on a parachute payment under Section 280G change of ownership or control of the Internal Revenue Code Employer (or in the ownership of 1986, as amended a substantial portion of the assets of the Employer) or any person affiliated with the Employer (or its Affiliates) or such person (but only if such payment or other benefit is in connection with Executive’s employment by the "Code"Employer) (collectively the “Employer Payments”), and but for this Section would will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Employer Payments, or (ii) a portion of the Employer Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income and employment taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxCode, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodeEmployer Payments. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which independent public accountant of the parties mutually agree Employer (the "“Accountants"”), whose determination will determination, absent manifest error, shall be conclusive and binding upon Executive and the Company for all purposespurposes upon the Employer and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company If there is a reduction of the Employer Payments pursuant to this Section 11, such reduction shall occur in accordance with Section 409A of the Code and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur following in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards.:

Section 280G Matters. If STX shall (a) use commercially reasonable efforts to obtain, no less than five (5) Business Days prior to the benefits described in Sections 1 and 2 hereinClosing, as applicable, a waiver from each “disqualified individual” (within the "Severance Payment") would otherwise constitute a parachute payment under meaning of Section 280G of the Internal Revenue Code and the regulations thereunder) that shall provide that, if the requisite stockholder approval under Section 280G(b)(5)(B) of 1986the Code and the regulations thereunder is not obtained, as amended no payments or benefits that would separately or in the aggregate constitute “excess parachute payments” (within the "Code"), meaning of Section 280G of the Code and but for this Section would the regulations thereunder) with respect to such disqualified individual in the absence of such stockholder approval shall be subject payable to or retained by such disqualified individual to the extent such excess parachute payments would not be deductible by reason of the application of Section 280G of the Code or would result in the imposition of excise tax imposed by Taxes under Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to upon such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants 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. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awardsdisqualified individual; and (3b) reduction deliver, no less than four (4) Business Days prior to the Closing, to the stockholders of other benefits paid to Executive. In STX a disclosure statement in a form which satisfies the event disclosure obligations under Section 280G(b)(5)(B) of the Code and the regulations thereunder, and which solicits and recommends that acceleration the shareholders vote in favor of vesting the transactions disclosed therein through a vote meeting the requirements of equity awards Section 280G(b)(5)(B) of the Code and the regulations thereunder, and which provides for a voting process that is intended to be reduced, such acceleration of vesting completed no later than the day prior to the Closing Date. STX shall be cancelled in the reverse order provide Eros and its Representatives with a copy of the date form of grant such waiver and such disclosure statement, all “parachute payment” calculations and all other relevant documents for Executive's equity awardsits review and approval (which approval shall not be unreasonably withheld) no less than five (5) Business Days prior to delivery to each such disqualified individual and to stockholders of STX, respectively, and STX shall consider in good faith all reasonable comments timely provided by STX or its Representatives.

Section 280G Matters. If Notwithstanding any other provision of this Agreement to the contrary, in the event that any payment that is either received by Executive or paid by Company on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with Company or any other person whose payments or benefits described are treated as contingent on a change of ownership or control of Company (or in Sections 1 and 2 hereinthe ownership of a substantial portion of the assets of Company) or any person affiliated with Company or such person (but only if such payment or other benefit is in connection with Executive’s employment by Company) (collectively the “Company Payments”), as applicable, will be subject to the tax (the "Severance Payment"“Excise Tax”) would otherwise constitute a parachute payment under imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the "Code"and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Company Payments, or (ii) a portion of the Company Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Internal Revenue Code), whichever of clauses (i) and but for this Section would be subject to (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxInternal Revenue Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any Payments. Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" the independent registered public accounting firm selected by of the Company or such other person or entity to which the parties mutually agree (the "“Accountants"”), whose determination will shall be conclusive and binding for all purposes upon Executive and the Company for all purposesand Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Internal Revenue Code. The If there is a reduction of the Company and the Executive shall furnish Payments pursuant to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any 11, such reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1A) reduction of any cash payments; severance payable by reference to Executive’s Base Salary or annual bonus, (2B) reduction of vesting acceleration of equity awards; any other cash amount payable to Executive, (C) any employee benefit valued as a “parachute payment,” and (3D) reduction of other benefits paid to Executive. In the event that acceleration of vesting of any outstanding equity awards is to be reducedaward. For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Company Payments are made to Executive after the application of the date cutback in this Section 11, which additional Company Payments result in the cutback no longer being applicable, Company shall pay Executive an additional amount equal to the value of grant for Executive's equity awardsthe Company Payments that were originally cutback. The Company shall determine at the end of each calendar year whether any such restoration is necessary based on additional Company Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days following the last day of such calendar year. For the avoidance of doubt, in no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any Excise Tax, interest or penalties that may be imposed on the Company Payments by reason of the application of Section 280G or Section 4999 of the Internal Revenue Code.”

Section 280G Matters. If In the event that any payment that is either received by Executive or paid by the Employer on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with the Employer or any other person whose payments or benefits described in Sections 1 and 2 herein, are treated as applicable, (the "Severance Payment") would otherwise constitute contingent on a parachute payment under Section 280G change of ownership or control of the Internal Revenue Code Employer (or in the ownership of 1986, as amended a substantial portion of the assets of the Employer) or any person affiliated with the Employer or such person (but only if such payment or other benefit is in connection with Executive’s employment by the "Code"Employer) (collectively the “Employer Payments”), and but for this Section would will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Employer Payments, or (ii) a portion of the Employer Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxCode, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodeEmployer Payments. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which independent public accountant of the parties mutually agree Employer (the "“Accountants"”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposespurposes upon the Employer and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and If there is a reduction of the Executive shall furnish Employer Payments pursuant to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any 11, such reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1A) reduction of any cash payments; severance payable by reference to the Executive’s Base Salary or Annual Bonus, (2B) reduction of vesting acceleration of equity awards; any other cash amount payable to Executive, (C) any employee benefit valued as a “parachute payment,” and (3D) reduction of other benefits paid to Executive. In the event that acceleration of vesting of any outstanding equity awards is to be reducedaward. For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Employer Payments are made to Executive after the application of the date cutback in this Section 11, which additional Employer Payments result in the cutback no longer being applicable, the Employer shall pay Executive an additional amount equal to the value of grant for Executive's equity awardsthe Employer Payments that were originally cutback. The Employer shall determine at the end of each calendar year whether any such restoration is necessary based on additional Employer Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days of the last day of such calendar year. In no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Employer Payments by reason of the application of Section 280G or Section 4999 of the Code.

Section 280G Matters. If Prior to the benefits described in Sections 1 Closing, the Company shall submit to the Stockholders (and 2 herein, such other persons as applicable, (the "Severance Payment") would otherwise constitute a parachute payment may be required under Section 280G of the Internal Revenue Code and the Treasury Regulations thereunder), for approval by a vote of 1986, Stockholders (and such other persons as amended may be required under Section 280G of the Code and the Treasury Regulations thereunder) as is required pursuant to Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder (the "Code"“280G Stockholder Vote”), any such payments or other benefits that, separately or in the aggregate, would otherwise be “parachute payments” within the meaning of Section 280G of the Code and but the Treasury Regulations thereunder (the “280G Payments”), such that, if the 280G Stockholder Vote is received approving the 280G Payments, such 280G Payments shall not cause there to be “excess parachute payments” under Section 280G of the Code and the Treasury Regulations thereunder. Prior to such 280G Stockholder Vote, the Company shall obtain, from each person whom the Company reasonably believes to be with respect to the Company or any of its Affiliates a “disqualified individual” (as defined in Section 280G of the Code and the Treasury Regulations thereunder) and who would otherwise receive or have the right or entitlement to receive a 280G Payment, a written waiver (in form and substance reasonably satisfactory to Parent) pursuant to which such person agrees to waive any and all right or entitlement to such 280G Payment, to the extent such payment would cause any payment not to be deductible pursuant to Section 280G of the Code. Such waivers shall cease to have any force or effect with respect to any item covered thereby to the extent the 280G Stockholder Vote for such item is obtained. The Company shall provide to Parent any materials to be distributed to Stockholders pursuant to this Section would 7.6 within a reasonable period of time prior to distribution to Stockholders, and such materials shall be subject to the excise tax imposed by Section 4999 prior review and approval of Parent (such approval not to be unreasonably withheld, conditioned or delayed). Prior to the Code Closing Date, the Company shall deliver to Parent written certification that either (a) the "Excise Tax"), Executive shall either: (i) pay 280G Stockholder Vote was solicited and the Excise TaxStockholder approval was obtained with respect to any 280G Payments that were subject to the 280G Stockholder Vote, or (iib) have the benefits reduced to Stockholder approval of any 280G Payments was not obtained, and, as a consequence, such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will 280G Payments shall not be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity provided to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants 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. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awardsaffected individual.

Section 280G Matters. If In the event that any payment that is either received by Executive or paid by the Employer on Executive’s behalf or any property, or any other benefit provided to Executive under this Agreement or under any other plan, arrangement or agreement with the Employer or any other person whose payments or benefits described in Sections 1 and 2 herein, are treated as applicable, (the "Severance Payment") would otherwise constitute contingent on a parachute payment under Section 280G change of ownership or control of the Internal Revenue Code Employer (or in the ownership of 1986, as amended a substantial portion of the assets of the Employer) or any person affiliated with the Employer or such person (but only if such payment or other benefit is in connection with Executive’s employment by the "Code"Employer) (collectively the “Employer Payments”), and but for this Section would will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then Executive will be entitled to receive either (i) the full amount of the Employer Payments, or (ii) a portion of the Employer Payments having a value equal to $1 less than three (3) times Executive’s “base amount” (as such term is defined in Section 280G(b) (3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise TaxCode, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodeEmployer Payments. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 will 11 shall be made in writing by a national "Big Four" accounting firm selected by the Company or such other person or entity to which independent public accountant of the parties mutually agree Employer (the "“Accountants"”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposespurposes upon the Employer and Executive. For purposes of making the calculations any calculation required by this Section 511, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and If there is a reduction of the Executive shall furnish Employer Payments pursuant to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any 11, such reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1A) reduction of any cash payments; severance payable by reference to the Executive’s Base Salary or Annual Bonus, (2B) reduction of vesting acceleration of equity awards; any other cash amount payable to Executive, (C) any employee benefit valued as a “parachute payment,” and (3D) reduction of other benefits paid to Executive. In the event that acceleration of vesting of any outstanding equity awards is to be reducedaward. For the avoidance of doubt, such acceleration of vesting shall be cancelled in the reverse order event that additional Employer Payments are made to Executive after the application of the date cutback in this Section 11, which additional Employer Payments result in the cutback no longer being applicable, the Employer shall pay Executive an additional amount equal to the value of grant for Executive's equity awardsthe Employer Payments that were originally cutback. The Employer shall determine at the end of each calendar year whether any such restoration is necessary based on additional Employer Payments (if any) made during such calendar year, and shall pay such restoration within ninety (90) days of the last day of such calendar year. In no event whatsoever shall Executive be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Employer Payments by reason of the application of Section 280G or Section 4999 of the Code.