Common use of 409A Gross-Up Clause in Contracts

409A Gross-Up. If Executive (A) is involuntarily terminated by the Company Without Cause or voluntarily terminates his or her employment for Good Reason or for Good Reason Outside of Change of Control (within the meaning of 9(e) or 9(f) below), (B) is a Specified Employee (as defined below) and (C) the Severance Pay or Change of Control Severance Pay constitutes a deferral of compensation under Code Section 409A, the Company shall pay to Executive an amount such that after payment by Executive of all taxes (including interest and penalties) imposed upon Executive under Code Section 409A with respect to the Severance Pay or Change of Control Severance Pay that would not be imposed if Section 409A did not apply to the Severance Pay or Change of Control Severance Pay (“409A Taxes”), including, without limitation, any income taxes, employment taxes and 409A Taxes imposed upon the Gross-Up Payment (and any interest and penalties imposed with respect thereto) but excluding any excise taxes imposed under Code Section 4999, Executive retains an amount of the Gross-Up Payment equal to the 409A Taxes imposed upon the Severance Pay or Change of Control Severance Pay. The term “specified Executive Employment Agreement 8/7/2006 employee” means that Executive satisfies any one of the following criteria while the Company’s stock is publicly traded: (A) is an officer of the Company and has annual compensation from the Company greater than $135,000 (as adjusted for inflation pursuant to Code Section 416(i)(A)); (B) owns (or is considered as owning within the meaning of Code Section 318) more than five-percent of the outstanding stock the Company or more than five-percent of the total combined voting power of all stock of the Company; or (C) receives annual compensation from the Company in excess of $150,000 and owns (or is considered as owning within the meaning of Code Section 318) more than one-percent of the outstanding stock the Company or more than one-percent of the total combined voting power of all stock of the Company. For purposes of clause (A), no more than 50 employees (or, if lesser, the greater of 3 or ten-percent of the Company’s employees) may be considered as officers under this paragraph. The Company shall determine whether the Executive is “specified employee” within the guidelines of Proposed Treasury Regulation § 1.409A-1(i) and any successor temporary or final regulation.

409A Gross-Up. If Executive (A) is involuntarily terminated by the Company Without Cause or voluntarily terminates his or her employment for Good Reason or for Good Reason Outside of Change of Control (within the meaning of 9(e) or 9(f) below), (B) is a Specified Employee (as defined below) and (C) the Severance Pay or Change of Control Severance Pay constitutes a deferral of compensation under Code Section 409A, the Company shall pay to Executive an amount such that after payment by Executive of all taxes (including interest and penalties) imposed upon Executive under Code Section 409A with respect to the Severance Pay or Change of Control Severance Pay that would not be imposed if Section 409A did not apply to the Severance Pay or Change of Control Severance Pay (“409A Taxes”), including, without limitation, any income taxes, employment taxes and 409A Taxes imposed upon the Gross-Up Payment (and any interest and penalties imposed with respect thereto) but excluding any excise taxes imposed under Code Section 4999, Executive retains an amount of the Gross-Up Payment equal to the 409A Taxes imposed upon the Severance Pay or Change of Control Severance Pay. The term “specified Executive Employment Agreement 8/7/2006 employee” means that Executive satisfies any one of the following criteria while the Company’s stock is publicly traded: (A) is an officer of the Company and has annual Executive Employment Agreement 8/7/2006 Page 3 of 6 compensation from the Company greater than $135,000 (as adjusted for inflation pursuant to Code Section 416(i)(A)); (B) owns (or is considered as owning within the meaning of Code Section 318) more than five-percent of the outstanding stock the Company or more than five-percent of the total combined voting power of all stock of the Company; or (C) receives annual compensation from the Company in excess of $150,000 and owns (or is considered as owning within the meaning of Code Section 318) more than one-percent of the outstanding stock the Company or more than one-percent of the total combined voting power of all stock of the Company. For purposes of clause (A), no more than 50 employees (or, if lesser, the greater of 3 or ten-percent of the Company’s employees) may be considered as officers under this paragraph. The Company shall determine whether the Executive is “specified employee” within the guidelines of Proposed Treasury Regulation § 1.409A-1(i) and any successor temporary or final regulation.

409A Gross-Up. If Executive (A) is involuntarily terminated by the Company Without Cause or voluntarily terminates his or her employment for Good Reason or for Good Reason Outside of Change of Control (within the meaning of 9(e) or 9(f) below), (B) is a Specified Employee (as defined below) and (C) the Severance Pay or Change of Control Severance Pay constitutes a deferral of compensation under Code Section 409A, the Company shall pay to Executive an amount such that after payment by Executive of all taxes (including interest and penalties) imposed upon Executive under Code Section 409A with respect to the Severance Pay or Change of Control Severance Pay that would not be imposed if Section 409A did not apply to the Severance Pay or Change of Control Severance Pay (“409A Taxes”), including, without limitation, any income taxes, employment taxes and 409A Taxes imposed upon the Gross-Up Payment (and any interest and penalties imposed with respect thereto) but excluding any excise taxes imposed under Code Section 4999, Executive retains an amount of the Gross-Up Payment equal to the 409A Taxes imposed upon the Severance Pay or Change of Control Severance Pay. The term “specified Executive Employment Agreement 8/7/2006 employee” means that Executive satisfies any one of the following criteria while the Company’s stock is publicly traded: (A) is an officer of the Company and has annual compensation from the Company greater than $135,000 (as adjusted for inflation pursuant Executive Employment Agreement 8/7/2006 to Code Section 416(i)(A)); (B) owns (or is considered as owning within the meaning of Code Section 318) more than five-percent of the outstanding stock the Company or more than five-percent of the total combined voting power of all stock of the Company; or (C) receives annual compensation from the Company in excess of $150,000 and owns (or is considered as owning within the meaning of Code Section 318) more than one-percent of the outstanding stock the Company or more than one-percent of the total combined voting power of all stock of the Company. For purposes of clause (A), no more than 50 employees (or, if lesser, the greater of 3 or ten-percent of the Company’s employees) may be considered as officers under this paragraph. The Company shall determine whether the Executive is “specified employee” within the guidelines of Proposed Treasury Regulation § 1.409A-1(i) and any successor temporary or final regulation.