Common use of Section 4999 Clause in Contracts

Section 4999. In the event it is determined that the Executive is entitled to payments and/or benefits provided by this Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms of this Agreement or any other plan, arrangement, or agreement with the Company or any affiliate, any person whose actions result in a change of ownership or effective control of the Company covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change of ownership or effective control of the Company (“Payments”) would be subject to the excise tax imposed by Section 4999 of the Code (the “280G Excise Tax”), the Company shall cause to be determined, before any amounts of the Payments are paid to the Executive, which of the following two alternative forms of payment would maximize the Executive’s after-tax proceeds: (a) payment in full of the entire amount of the Payments, or (b) payment of only a part of the Payments so that the Executive receives the largest payment possible without the imposition of the 280G Excise Tax (“Reduced Payments”). If it is determined that Reduced Payments will maximize the Executive’s after-tax benefit, then (i) cash compensation subject to Section 409A shall be reduced first, cash payments not subject to Section 409A shall be reduced second, non-cash compensation subject to Section 409A shall be reduced third, and then non-cash compensation not subject to Section 409A shall be reduced fourth, (ii) the Payments shall be paid only to the extent permitted under the Reduced Payments alternative, and (iii) the Executive shall have no rights to any additional payments and/or benefits constituting the Payments. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 9 shall be made in writing by independent public accountants agreed to by the Company and the Executive (the “Accountants”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 9, the Accountants 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 the required determinations. The Company shall bear all fees and expenses the Accountants may reasonably charge in connection with the services contemplated by this Section 9. Notwithstanding the foregoing, the calculations and adjustments set forth above shall not result in any delay in payment of benefits under this Agreement.

Section 4999. In (i) Prior to an initial public offering of the event it is determined that Company’s common stock, in order to allow Executive to avoid the 20% excise tax imposed under Section 4999 of the Code, Executive is entitled and the Company and SLP shall use commercially reasonable best efforts to payments and/or benefits provided by this Agreement or any other amounts obtain stockholder approval in the “nature of compensation” (whether pursuant to accordance with the terms of this Agreement Section 280G(b)(5) of the Code in connection with any “change in the ownership or any other plan, arrangement, or agreement with effective control” of the Company or any affiliate, any person whose actions result “change in the ownership of a change of ownership or effective control substantial portion of the Company covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change of ownership or effective control assets” of the Company (each as defined under Section 280G of the Code). (ii) In the event that, notwithstanding the actions taken pursuant to Section 8(e)(i), any amounts payable under this Agreement or otherwise to Executive would (1) constitute “Payments”parachute payments” within the meaning of Section 280G of the Code, or any comparable successor provisions, and (2) but for this Section 8(e)(ii) would be subject to the excise tax imposed by Section 4999 of the Code Code, or any comparable successor provisions (the “280G Excise Tax”), then such amounts payable to Executive hereunder shall be either: (A) provided to Executive in full, or (B) provided to Executive as to such lesser extent that would result in no portion of such benefits being subject to the Company shall cause to be determinedExcise Tax, before any amounts whichever of the Payments are paid to foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, which of the following two alternative forms of payment would maximize the Executive’s on an after-tax proceeds: (a) payment in full basis, of the entire greatest amount of the Paymentsbenefits, notwithstanding that all or (b) payment some portion of only a part of the Payments so that the Executive receives the largest payment possible without the imposition of the 280G Excise Tax (“Reduced Payments”). If it is determined that Reduced Payments will maximize the Executive’s after-tax benefit, then (i) cash compensation subject to Section 409A shall such benefits may be reduced first, cash payments not subject to Section 409A shall be reduced second, non-cash compensation subject to Section 409A shall be reduced third, and then non-cash compensation not subject to Section 409A shall be reduced fourth, (ii) the Payments shall be paid only to the extent permitted taxable under the Reduced Payments alternative, and (iii) the Executive shall have no rights to any additional payments and/or benefits constituting the PaymentsExcise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 9 8(e)(ii) shall be made in writing in good faith by independent public accountants agreed to by the Company and the Executive a nationally recognized accounting firm (the “Accountants”). In the event of a reduction in benefits hereunder, whose determination Executive shall be conclusive and binding upon given the choice of which benefits to reduce. If Executive and does not provide written identification to the Company for all purposesof which benefits he chooses to reduce within ten (10) days of his receipt of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 98(e)(ii), 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, and other applicable legal authority. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make the required determinationsa determination under this Section 8(d)(ii). The Company shall bear all fees and expenses costs the Accountants may reasonably charge incur in connection with the services any calculations contemplated by this Section 98(e)(ii). Notwithstanding the foregoingIf, notwithstanding any reduction described in this Section 8(e)(ii), the calculations Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the “Repayment Amount”. The Repayment Amount with respect to the payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and adjustments set forth above all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise Tax. Notwithstanding any delay other provision of this Section 8(e)(ii), if (1) there is a reduction in the payment of benefits under as described in this AgreementSection 8(e)(ii), (2) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s net after-tax proceeds (calculated as if Executive’s benefits had not previously been reduced), and (3) Executive pays the Excise Tax, then the Company shall pay to Executive those benefits which were reduced pursuant to this Section 8(e)(ii) as soon as administratively possible after Executive pays the Excise Tax so that Executive’s net after-tax proceeds with respect to the payment of benefits are maximized.

Section 4999. In the event it is determined that the Executive is entitled to payments and/or benefits provided by any amounts payable under this Agreement or any other amounts in otherwise to Executive would (1) constitute “parachute payments” within the “nature meaning of compensation” (whether pursuant to Section 280G of the terms of this Agreement Code, or any other plancomparable successor provisions, arrangement, or agreement with the Company or any affiliate, any person whose actions result in a change of ownership or effective control of the Company covered by and (2) but for this Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change of ownership or effective control of the Company (“Payments”8(g) would be subject to the excise tax imposed by Section 4999 of the Code Code, or any comparable successor provisions (the “280G Excise Tax”), then such amounts payable to Executive hereunder shall be either: (A) provided to Executive in full, or (B) provided to Executive as to such lesser extent that would result in no portion of such benefits being subject to the Company shall cause to be determinedExcise Tax, before any amounts whichever of the Payments are paid to foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, which of the following two alternative forms of payment would maximize the Executive’s on an after-tax proceeds: (a) payment in full basis, of the entire greatest amount of the Paymentsbenefits, notwithstanding that all or (b) payment some portion of only a part of the Payments so that the Executive receives the largest payment possible without the imposition of the 280G Excise Tax (“Reduced Payments”). If it is determined that Reduced Payments will maximize the Executive’s after-tax benefit, then (i) cash compensation subject to Section 409A shall such benefits may be reduced first, cash payments not subject to Section 409A shall be reduced second, non-cash compensation subject to Section 409A shall be reduced third, and then non-cash compensation not subject to Section 409A shall be reduced fourth, (ii) the Payments shall be paid only to the extent permitted taxable under the Reduced Payments alternative, and (iii) the Executive shall have no rights to any additional payments and/or benefits constituting the PaymentsExcise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 9 8(g) shall be made in writing in good faith by independent public accountants agreed to by the Company and the Executive a nationally recognized accounting firm (the “Accountants”). In the event of a reduction in benefits hereunder, whose determination Executive shall be conclusive and binding upon given the choice of which benefits to reduce. If Executive and does not provide written identification to the Company for all purposesof which benefits he chooses to reduce within ten (10) days of his receipt of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 98(g), 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 the Code and 4999 of the Codeother applicable legal authority. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make the required determinationsa determination under this Section 8(g). The Company shall bear all fees and expenses costs the Accountants may reasonably charge incur in connection with the services any calculations contemplated by this Section 98(g). Notwithstanding the foregoingIf, notwithstanding any reduction described in this Section 8(g), the calculations and adjustments set forth above shall not Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result in any delay in payment of benefits the receipt of amounts payable under this Agreement.Agreement or otherwise as described above, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the

Section 4999. In the event it is determined that the Executive is entitled to payments and/or benefits provided (A) If, by this Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms of this Agreement or any other plan, arrangementreason of, or agreement with the Company or any affiliatein connection with, any person whose actions result in a change of ownership or effective control of transaction that occurs after the Company covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change of ownership or effective control of the Company (“Payments”) Effective Date, Executive would be subject to the imposition of the excise tax imposed by Section 4999 of the Code, but the imposition of such tax could be avoided by approval of shareholders described in Section 280G(b)(5)(B) of the Code, then Executive may cause the Company or Holdings to seek such approval, in which case the Company and Holdings will use its reasonable best efforts to cause such approval to be obtained and Executive will cooperate and execute such waivers as may be necessary so that such approval avoids imposition of any excise tax under Section 4999. If the Executive fails to cause the Company or Holdings to seek such approval, Exhibit I shall not apply and Executive shall not be entitled to any gross-up payment for any resulting tax under Section 4999. If such approval, even if sought and obtained, would not avoid imposition of the excise tax imposed under Section 4999, then the provisions of Exhibit I attached hereto shall apply. (B) With respect to the imposition of the excise tax imposed by Section 4999 of the Code arising by reason of or in connection with the Closing, Section 4.6 of the Employment Agreement between Executive and Holdings dated as of October 11, 2004, as amended on September 28, 2007 (the “280G Excise TaxPrior Agreement”) shall apply. The Gross-up Payment, as defined in the Prior Agreement, that is attributable to the amount by which the LTIP Payment, as defined in Section 2.1 of the Deferred Share Agreement dated October 9, 2007 between Executive and Texas Energy Future Holdings Limited Partnership (the “Deferred Share Agreement”), the Company shall cause is reduced pursuant to be determined, before any amounts Section 2.1 of the Payments are Deferred Share Agreement (the “Deferred Share Gross-Up”), shall be paid to Executive on January 2, 2008, subject to withholding for federal income taxes, FICA taxes, and Section 4999 excise taxes. The parties agree that the ExecutiveDeferred Share Gross-Up, which after application of the following two alternative forms Additional Payment Agreement, shall equal $437,575, subject to federal income tax withholding of payment would maximize $153,151.25, FICA withholding of $6,344.84, and Section 4999 withholding of $80,803. Any Gross-Up Payment otherwise due by reason of distributions pursuant to the Executive’s after-tax proceeds: (a) payment in full of Deferred Share Agreement shall be reduced by the entire amount of the Payments, or (b) payment of only a part of the Payments so that the Executive receives the largest payment possible without the imposition of the 280G Excise Tax (“Reduced Payments”)Deferred Share Gross-Up. If it is determined that Reduced Payments will maximize the Following Executive’s after-tax benefittermination of employment following a Change in Control, then (i) cash compensation subject to except as set forth in this Section 409A shall be reduced first7(e), cash payments not subject to Section 409A shall be reduced second, non-cash compensation subject to Section 409A shall be reduced third, and then non-cash compensation not subject to Section 409A shall be reduced fourth, (ii) the Payments shall be paid only to the extent permitted under the Reduced Payments alternative, and (iii) the Executive shall have no further rights to any additional payments and/or benefits constituting the Payments. Unless the Company and the Executive otherwise agree in writing, compensation or any determination required under this Section 9 shall be made in writing by independent public accountants agreed to by the Company and the Executive (the “Accountants”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 9, the Accountants 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 the required determinations. The Company shall bear all fees and expenses the Accountants may reasonably charge in connection with the services contemplated by this Section 9. Notwithstanding the foregoing, the calculations and adjustments set forth above shall not result in any delay in payment of other benefits under this Agreement.

Section 4999. In the event it is determined that the Executive is entitled to payments and/or benefits provided by this Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms of this Agreement or any other plan, arrangement, or agreement with the Company or any affiliate, any person whose actions result in a change of ownership or effective control of the Company covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change of ownership or effective control of the Company (“Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (the “280G Excise Tax”), the Company shall cause to be determined, before any amounts of the Payments are paid to the Executive, which of the following two alternative forms of payment would maximize the Executive’s after-tax proceeds: (a) payment in full of the entire amount of the Payments, or (b) payment of only a part of the Payments so that the Executive receives the largest payment possible without the imposition of the 280G Excise Tax (“Reduced Payments”). If it is determined that Reduced Payments will maximize the Executive’s after-tax benefit, then (i) cash compensation subject to Section 409A shall be reduced first, cash payments not subject to Section 409A shall be reduced second, non-cash compensation subject to Section 409A shall be reduced third, and then non-cash compensation not subject to Section 409A shall be reduced fourth, (ii) the Payments shall be paid only to the extent permitted under the Reduced Payments alternative, and (iii) the Executive shall have no rights to any additional payments and/or benefits constituting the Payments. Unless the Company and the Executive shall otherwise agree in writingdetermine, any determination required under this Section 9 shall be made in writing by independent public accountants agreed to designated by the Company and the Executive (the “Accountants”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 9, the Accountants 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 the required determinations. The Company shall bear all fees and expenses the Accountants may reasonably charge in connection with the services contemplated by this Section 9. Notwithstanding the foregoing, the calculations and adjustments set forth above shall not result in any delay in payment of benefits under this Agreement.

Section 4999. In (i) Prior to an IPO, in order to allow Executive to avoid the event it is determined that 20% excise tax imposed under Section 4999 of the Code, Executive is entitled and the Company shall use commercially reasonable efforts to payments and/or benefits provided by this Agreement or any other amounts obtain stockholder approval in the “nature of compensation” (whether pursuant to accordance with the terms of this Agreement Section 280G(b)(5) of the Code in connection with any “change in the ownership or any other plan, arrangement, or agreement with effective control” of the Company or any affiliate, any person whose actions result “change in the ownership of a change of ownership or effective control substantial portion of the Company covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change of ownership or effective control assets” of the Company (each as defined under Section 280G of the Code). (ii) In the event that, despite the efforts taken pursuant to Section 8(f)(i), any amounts payable under this Agreement or otherwise to Executive would (1) constitute “Payments”parachute payments” within the meaning of Section 280G of the Code, or any comparable successor provisions, and (2) but for this Section 8(f)(ii) would be subject to the excise tax imposed by Section 4999 of the Code Code, or any comparable successor provisions (the “280G Excise Tax”), then such amounts payable to Executive hereunder shall be either: (A) provided to Executive in full, or (B) provided to Executive as to such lesser extent that would result in no portion of such benefits being subject to the Company shall cause to be determinedExcise Tax, before any amounts whichever of the Payments are paid to foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, which of the following two alternative forms of payment would maximize the Executive’s on an after-tax proceeds: (a) payment in full basis, of the entire greatest amount of the Paymentsbenefits, notwithstanding that all or (b) payment some portion of only a part of the Payments so that the Executive receives the largest payment possible without the imposition of the 280G Excise Tax (“Reduced Payments”). If it is determined that Reduced Payments will maximize the Executive’s after-tax benefit, then (i) cash compensation subject to Section 409A shall such benefits may be reduced first, cash payments not subject to Section 409A shall be reduced second, non-cash compensation subject to Section 409A shall be reduced third, and then non-cash compensation not subject to Section 409A shall be reduced fourth, (ii) the Payments shall be paid only to the extent permitted taxable under the Reduced Payments alternative, and (iii) the Executive shall have no rights to any additional payments and/or benefits constituting the PaymentsExcise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 9 8(f)(ii) shall be made in writing in good faith by independent public accountants agreed to by the Company and the Executive a nationally recognized accounting firm (the “Accountants”). In the event of a reduction in benefits hereunder, whose determination Executive shall be conclusive and binding upon given the choice of which benefits to reduce. If Executive and does not provide written identification to the Company for all purposesof which benefits he chooses to reduce within ten (10) days of his receipt of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 98(f)(ii), 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 the Code and 4999 of the Codeother applicable legal authority. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make the required determinationsa determination under this Section 8(f)(ii). The Company shall bear all fees and expenses costs the Accountants may reasonably charge incur in connection with the services any calculations contemplated by this Section 98(f)(ii). Notwithstanding the foregoingIf, notwithstanding any reduction described in this Section 8(f)(ii), the calculations Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the “Repayment Amount”. The Repayment Amount with respect to the payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and adjustments set forth above all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise Tax. Notwithstanding any delay other provision of this Section 8(f)(ii), if (1) there is a reduction in the payment of benefits under as described in this AgreementSection 8(f)(ii), (2) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s net after-tax proceeds (calculated as if Executive’s benefits had not previously been reduced), and (3) Executive pays the Excise Tax, then the Company shall pay to Executive those benefits which were reduced pursuant to this Section 8(f)(ii) as soon as administratively possible after Executive pays the Excise Tax so that Executive’s net after-tax proceeds with respect to the payment of benefits are maximized.

Section 4999. In (i) Prior to an initial public offering of the event it is determined that Company’s common stock, in order to allow Executive to avoid the 20% excise tax imposed under Section 4999 of the Code, Executive is entitled and the Company and SLP shall use commercially reasonable best efforts to payments and/or benefits provided by this Agreement or any other amounts obtain stockholder approval in the “nature of compensation” (whether pursuant to accordance with the terms of this Agreement Section 280G(b)(5) of the Code in connection with any “change in the ownership or any other plan, arrangement, or agreement with effective control” of the Company or any affiliate, any person whose actions result “change in the ownership of a change of ownership or effective control substantial portion of the Company covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change of ownership or effective control assets” of the Company (each as defined under Section 280G of the Code). (ii) In the event that, notwithstanding the actions taken pursuant to Section 8(e)(i), any amounts payable under this Agreement or otherwise to Executive would (1) constitute “Payments”parachute payments” within the meaning of Section 280G of the Code, or any comparable successor provisions, and (2) but for this Section 8(e)(ii) would be subject to the excise tax imposed by Section 4999 of the Code Code, or any comparable successor provisions (the “280G Excise Tax”), then such amounts payable to Executive hereunder shall be either: (A) provided to Executive in full, or (B) provided to Executive as to such lesser extent that would result in no portion of such benefits being subject to the Company shall cause to be determinedExcise Tax, before any amounts whichever of the Payments are paid to foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, which of the following two alternative forms of payment would maximize the Executive’s on an after-tax proceeds: (a) payment in full basis, of the entire greatest amount of the Paymentsbenefits, notwithstanding that all or (b) payment some portion of only a part of the Payments so that the Executive receives the largest payment possible without the imposition of the 280G Excise Tax (“Reduced Payments”). If it is determined that Reduced Payments will maximize the Executive’s after-tax benefit, then (i) cash compensation subject to Section 409A shall such benefits may be reduced first, cash payments not subject to Section 409A shall be reduced second, non-cash compensation subject to Section 409A shall be reduced third, and then non-cash compensation not subject to Section 409A shall be reduced fourth, (ii) the Payments shall be paid only to the extent permitted taxable under the Reduced Payments alternative, and (iii) the Executive shall have no rights to any additional payments and/or benefits constituting the PaymentsExcise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 9 8(e)(ii) shall be made in writing in good faith by independent public accountants agreed to by the Company and the Executive a nationally recognized accounting firm (the “Accountants”). In the event of a reduction in benefits hereunder, whose determination Executive shall be conclusive and binding upon given the choice of which benefits to reduce. If Executive and does not provide written identification to the Company for all purposesof which benefits he chooses to reduce within ten (10) days of his receipt of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 98(e)(ii), 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, and other applicable legal authority. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make the required determinationsa determination under this Section 8(e)(ii). The Company shall bear all fees and expenses costs the Accountants may reasonably charge incur in connection with the services any calculations contemplated by this Section 98(e)(ii). Notwithstanding the foregoingIf, notwithstanding any reduction described in this Section 8(e)(ii), the calculations Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the “Repayment Amount”. The Repayment Amount with respect to the payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and adjustments set forth above all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise Tax. Notwithstanding any delay other provision of this Section 8(e)(ii), if (1) there is a reduction in the payment of benefits under as described in this AgreementSection 8(e)(ii), (2) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s net after-tax proceeds (calculated as if Executive’s benefits had not previously been reduced), and (3) Executive pays the Excise Tax, then the Company shall pay to Executive those benefits which were reduced pursuant to this Section 8(e)(ii) as soon as administratively possible after Executive pays the Excise Tax so that Executive’s net after-tax proceeds with respect to the payment of benefits are maximized.

Section 4999. In the event it is determined that the Executive is entitled to payments and/or benefits provided by any amounts payable under this Agreement or any other amounts in otherwise to Executive would (1) constitute “parachute payments” within the “nature meaning of compensation” (whether pursuant to Section 280G of the terms of this Agreement Code, or any other plancomparable successor provisions, arrangement, or agreement with the Company or any affiliate, any person whose actions result in a change of ownership or effective control of the Company covered by and (2) but for this Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change of ownership or effective control of the Company (“Payments”8(f) would be subject to the excise tax imposed by Section 4999 of the Code Code, or any comparable successor provisions (the “280G Excise Tax”), then such amounts payable to Executive hereunder shall be either: (A) provided to Executive in full, or (B) provided to Executive as to such lesser extent that would result in no portion of such benefits being subject to the Company shall cause to be determinedExcise Tax, before any amounts whichever of the Payments are paid to foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, which of the following two alternative forms of payment would maximize the Executive’s on an after-tax proceeds: (a) payment in full basis, of the entire greatest amount of the Paymentsbenefits, notwithstanding that all or (b) payment some portion of only a part of the Payments so that the Executive receives the largest payment possible without the imposition of the 280G Excise Tax (“Reduced Payments”). If it is determined that Reduced Payments will maximize the Executive’s after-tax benefit, then (i) cash compensation subject to Section 409A shall such benefits may be reduced first, cash payments not subject to Section 409A shall be reduced second, non-cash compensation subject to Section 409A shall be reduced third, and then non-cash compensation not subject to Section 409A shall be reduced fourth, (ii) the Payments shall be paid only to the extent permitted taxable under the Reduced Payments alternative, and (iii) the Executive shall have no rights to any additional payments and/or benefits constituting the PaymentsExcise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 9 8(f) shall be made in writing in good faith by independent public accountants agreed to by the Company and the Executive a nationally recognized accounting firm (the “Accountants”). In the event of a reduction in benefits hereunder, whose determination Executive shall be conclusive and binding upon given the choice of which benefits to reduce. If Executive and does not provide written identification to the Company for all purposesof which benefits he chooses to reduce within ten (10) days of his receipt of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 98(f), 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 the Code and 4999 of the Codeother applicable legal authority. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make the required determinationsa determination under this Section 8(g). The Company shall bear all fees and expenses costs the Accountants may reasonably charge incur in connection with the services any calculations contemplated by this Section 98(f). Notwithstanding the foregoingIf, notwithstanding any reduction described in this Section 8(f), the calculations Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the “Repayment Amount”. The Repayment Amount with respect to the payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and adjustments set forth above all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise Tax. Notwithstanding any delay other provision of this Section 8(f), if (1) there is a reduction in the payment of benefits under as described in this AgreementSection 8(f), (2) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s net after-tax proceeds (calculated as if Executive’s benefits had not previously been reduced), and (3) Executive pays the Excise Tax, then the Company shall pay to Executive those benefits which were reduced pursuant to this Section 8(f) as soon as administratively possible after Executive pays the Excise Tax, but no later than the end of the calendar year next following the year in which such Excise Tax is paid so that Executive’s net after-tax proceeds with respect to the payment of benefits are maximized.

Section 4999. In (i) Prior to an IPO, in order to allow Executive to avoid the event it is determined that 20% excise tax imposed under Section 4999 of the Code, Executive is entitled and the Company shall use commercially reasonable efforts to payments and/or benefits provided by this Agreement or any other amounts obtain stockholder approval in the “nature of compensation” (whether pursuant to accordance with the terms of this Agreement Section 280G(b)(5) of the Code in connection with any “change in the ownership or any other plan, arrangement, or agreement with effective control” of the Company or any affiliate, any person whose actions result “change in the ownership of a change of ownership or effective control substantial portion of the Company covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change of ownership or effective control assets” of the Company (each as defined under Section 280G of the Code). (ii) In the event that, despite the efforts taken pursuant to Section 8(f)(i), any amounts payable under this Agreement or otherwise to Executive would (1) constitute “Payments”parachute payments” within the meaning of Section 280G of the Code, or any comparable successor provisions, and (2) but for this Section 8(f)(ii) would be subject to the excise tax imposed by Section 4999 of the Code Code, or any comparable successor provisions (the “280G Excise Tax”), then such amounts payable to Executive hereunder shall be either: (A) provided to Executive in full, or (B) provided to Executive as to such lesser extent that would result in no portion of such benefits being subject to the Company shall cause to be determinedExcise Tax, before any amounts whichever of the Payments are paid to foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, which of the following two alternative forms of payment would maximize the Executive’s on an after-tax proceeds: (a) payment in full basis, of the entire greatest amount of the Paymentsbenefits, notwithstanding that all or (b) payment some portion of only a part of the Payments so that the Executive receives the largest payment possible without the imposition of the 280G Excise Tax (“Reduced Payments”). If it is determined that Reduced Payments will maximize the Executive’s after-tax benefit, then (i) cash compensation subject to Section 409A shall such benefits may be reduced first, cash payments not subject to Section 409A shall be reduced second, non-cash compensation subject to Section 409A shall be reduced third, and then non-cash compensation not subject to Section 409A shall be reduced fourth, (ii) the Payments shall be paid only to the extent permitted taxable under the Reduced Payments alternative, and (iii) the Executive shall have no rights to any additional payments and/or benefits constituting the PaymentsExcise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 9 8(f)(ii) shall be made in writing in good faith by independent public accountants agreed to by the Company and the Executive a nationally recognized accounting firm (the “Accountants”). [In the event of a reduction in benefits hereunder, whose determination the reduction of the total payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the Code: (i) first, any cash severance payments due under the Agreement shall be conclusive reduced, with the last such payment due first forfeited and binding upon reduced, and sequentially thereafter working from the Executive next last payment, and (ii) second, any acceleration of vesting of any equity shall be deferred with the Company for all purposes. tranche that would vest last (without any such acceleration) first deferred.] For purposes of making the calculations required by this Section 98(f)(ii), 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 the Code and 4999 of the Codeother applicable legal authority. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make the required determinationsa determination under this Section 8(f)(ii). The Company shall bear all fees and expenses costs the Accountants may reasonably charge incur in connection with the services any calculations contemplated by this Section 98(f)(ii). Notwithstanding the foregoingIf, notwithstanding any reduction described in this Section 8(f)(ii), the calculations Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the “Repayment Amount”. The Repayment Amount with respect to the payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and adjustments set forth above all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise Tax. Notwithstanding any delay other provision of this Section 8(f)(ii), if (1) there is a reduction in the payment of benefits under as described in this AgreementSection 8(f)(ii), (2) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s net after-tax proceeds (calculated as if Executive’s benefits had not previously been reduced), and (3) Executive pays the Excise Tax, then the Company shall pay to Executive those benefits which were reduced pursuant to this Section 8(f)(ii) as soon as administratively possible after Executive pays the Excise Tax so that Executive’s net after-tax proceeds with respect to the payment of benefits are maximized.