Common use of Certain Taxes Clause in Contracts

Certain Taxes. Notwithstanding anything in this Agreement to the contrary, the amount of any cash payment to be received by the Employee pursuant to this Agreement shall be reduced (but not below zero) by the amount, if any, necessary to prevent any part of any payment or benefit in the "nature of compensation" received or to be received by or for the benefit of the Employee in connection with a change in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Code), and the regulations or proposed regulations thereunder) (whether pursuant to the terms of this Agreement (but without regard to this Section 11), any other agreement, contract, plan or arrangement of the Company or the Subsidiary or any affiliate of either or any person whose action results in such a change in ownership or effective control or change in ownership of assets or any affiliate of such person) (such foregoing payments or benefits referred to collectively as the "Total Payments"), from being treated as an "excess parachute payment" within the meaning of Section 280G(b)(1) of the Code, but only if and to the extent that such reduction will also result in, after taking into account all applicable state, local and Federal taxes (computed at the highest applicable marginal rate) including any taxes payable pursuant to Section 4999 of the Code (and any similar tax that may hereafter be imposed under any successor provision or by any taxing authority), a greater after-tax benefit to the Employee than the after-tax benefit to the Employee of the Total Payments computed without regard to any such reduction. For purposes of the foregoing, (i) no portion of the Total Payments shall be taken into account which in the opinion of nationally-recognized tax counsel selected by the Employee ("Tax Counsel") either (A) does not constitute either a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, (B) represents reasonable compensation within the meaning of Section 280G(b)(4) of the Code or (C) is not otherwise subject to the excise tax imposed by Section 4999 of the Code; (ii) the value of any non-cash benefits or of any deferred or accelerated payments or benefits included in the Total Payments shall be determined by a nationally-recognized public accounting firm, selected by the Employee, in accordance with the principles of Sections 280G(d)(3) and (4) of the Code and the regulations or proposed regulations thereunder; and (iii) in the event of any uncertainty as to whether a reduction in Total Payments to the Employee is required pursuant hereto, the Company or the Subsidiary shall initially make all payments otherwise required to be paid to the Employee hereunder, and any amounts so paid which are ultimately determined not to have been payable hereunder other than as a loan to the Employee, either (x) upon mutual agreement of the Employee and the Company or the Subsidiary, as applicable, or (y) upon Tax Counsel furnishing the Employee with its written opinion setting forth the amount of such payments not to have been so payable other than as a loan to the Employee under this Section 11, or (z) in the event a portion of the Total Payments shall be finally determined by a court or an Internal Revenue Service proceeding to have otherwise been an "excess parachute payment," the amounts so determined in (x), (y) or (z) shall constitute a loan by the Company or the Subsidiary, as applicable, to the Employee under this Section 11, and the Employee shall repay to the Company within ten (10) business days after the time of such mutual agreement, such opinion is so furnished to the Employee, or of such determination, as applicable, the amount of such loan plus interest thereon at the rate provided in Section 1274(b)(2)(B) of the Code for the period from the date of the initial payments to the Employee to the date of such repayment by the Employee. All fees and expenses of any Tax Counsel or accounting firm selected under this Section 11 shall be borne solely by the Company or the Subsidiary.

Certain Taxes. Notwithstanding anything Anything in this Agreement or in any other plan, program or agreement to the contrarycontrary notwithstanding and except as set forth below, in the amount of event that (i) the Executive becomes entitled to any cash payment to be received by the Employee pursuant to this Agreement benefits or payments under Section VII hereof and (ii) it shall be reduced (but not below zero) by the amount, if any, necessary to prevent any part of determined that any payment or benefit in distribution by the "nature of compensation" received or Company to be received by or for the benefit of the Employee in connection with a change in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Code), and the regulations or proposed regulations thereunder) Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement (but without regard to this Section 11), any other agreement, contract, plan or arrangement of the Company or the Subsidiary or any affiliate of either or any person whose action results in such a change in ownership or effective control or change in ownership of assets or any affiliate of such person) (such foregoing payments or benefits referred to collectively as the "Total Payments"), from being treated as an "excess parachute payment" within the meaning of Section 280G(b)(1) of the Codeotherwise, but only if and to the extent that such reduction will also result in, after taking into account all applicable state, local and Federal taxes (computed at the highest applicable marginal rate) including any taxes payable pursuant to Section 4999 of the Code (and any similar tax that may hereafter be imposed under any successor provision or by any taxing authority), a greater after-tax benefit to the Employee than the after-tax benefit to the Employee of the Total Payments computed determined without regard to any such reduction. For purposes of the foregoing, additional payments required under this Section X) (ia “Payment”) no portion of the Total Payments shall would be taken into account which in the opinion of nationally-recognized tax counsel selected by the Employee ("Tax Counsel") either (A) does not constitute either a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, (B) represents reasonable compensation within the meaning of Section 280G(b)(4) of the Code or (C) is not otherwise subject to the excise tax imposed by Section 4999 of the Code; Internal Revenue Code of 1986, as amended, or any interest or penalties are incurred by the Executive with respect to such excise tax (iisuch excise tax, together with any such interest and penalties, hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the value Executive of all taxes (including any noninterest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-cash benefits or Up Payment, the Executive retains an amount of any deferred or accelerated payments or benefits included in the Total Payments Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section X, if it shall be determined by that the Executive is entitled to a nationallyGross-recognized public accounting firmUp Payment, selected by but that the Employee, in accordance with the principles of Sections 280G(d)(3) and (4) Payments do not exceed 110% of the Code and greatest amount (the regulations or proposed regulations thereunder; and (iii“Reduced Amount”) in the event of any uncertainty as to whether a reduction in Total Payments to the Employee is required pursuant hereto, the Company or the Subsidiary shall initially make all payments otherwise required to that could be paid to the Employee hereunderExecutive such that the receipt of Payments would not give rise to any Excise Tax, and any amounts so paid which are ultimately determined not to have been payable hereunder other than as a loan then no Gross-Up Payment shall be made to the Employee, either (x) upon mutual agreement of the Employee Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount, provided, however, that the payments or benefits to be eliminated in effecting such reduction shall be agreed upon between the Company or and the SubsidiaryExecutive. All determinations required to be made under this Section X, as applicable, or (y) upon Tax Counsel furnishing the Employee with its written opinion setting forth including whether and when a Gross-Up Payment is required and the amount of such payments not to have been so payable other than as a loan to the Employee under this Section 11, or (z) in the event a portion of the Total Payments shall be finally determined by a court or an Internal Revenue Service proceeding to have otherwise been an "excess parachute payment," the amounts so determined in (x), (y) or (z) shall constitute a loan by the Company or the Subsidiary, as applicable, to the Employee under this Section 11, Gross-Up Payment and the Employee shall repay assumptions to the Company within ten (10) business days after the time of such mutual agreement, such opinion is so furnished to the Employee, or of be utilized in arriving at such determination, shall be made by Deloitte & Touche LLP or such other certified public accounting firm as applicable, the amount of such loan plus interest thereon at the rate provided in Section 1274(b)(2)(B) of the Code for the period from the date of the initial payments to the Employee to the date of such repayment may be designated by the Employee. All fees and expenses of any Tax Counsel or accounting firm selected under this Section 11 shall be borne solely by the Company or the SubsidiaryCompany.

Certain Taxes. Notwithstanding anything in any other provision of this Agreement to the contrary, in the amount of event that any cash payment to be that is either received by the Employee pursuant Executive or paid by the Company on the Executive’s behalf or any property, or any other benefit provided to the Executive under this Agreement shall be reduced (but not below zero) by or under any other plan, arrangement or agreement with the amount, if any, necessary to prevent Company or any part of any payment other person whose payments or benefit in the "nature of compensation" received or to be received by or for the benefit of the Employee in connection with benefits are treated as contingent on a change in the of ownership or effective control of the Company (or a change in the ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Code), and the regulations Company) or proposed regulations thereunder) (whether pursuant to the terms of this Agreement (but without regard to this Section 11), any other agreement, contract, plan or arrangement of person affiliated with the Company or the Subsidiary or any affiliate of either or any such person whose action results in such a change in ownership or effective control or change in ownership of assets or any affiliate of such person) (such foregoing payments or benefits referred to collectively as the "Total Payments"), from being treated as an "excess parachute payment" within the meaning of Section 280G(b)(1) of the Code, but only if and such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively the “Company Payments”), will be subject to the extent that such reduction will also result in, after taking into account all applicable state, local and Federal taxes tax (computed at the highest applicable marginal rate“Excise Tax”) including any taxes payable pursuant to imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed under any successor provision or by any taxing authority), a greater after-tax benefit then the Executive will be entitled to the Employee than the after-tax benefit to the Employee of the Total Payments computed without regard to any such reduction. For purposes of the foregoing, receive either (i) no the full amount of the Company Payments, or (ii) a portion of the Total Company Payments shall be taken into account which having a value equal to $1 less than three (3) times the Executive’s “base amount” (as such term is defined in the opinion of nationally-recognized tax counsel selected by the Employee ("Tax Counsel") either (A) does not constitute either a "parachute payment" within the meaning of Section 280G(b)(2280G(b)(3)(A) of the Code), whichever of clauses (Bi) represents reasonable compensation within the meaning of Section 280G(b)(4) of the Code or and (C) is not otherwise 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; , results in the receipt by the Executive on an after-tax basis, of the greatest portion of the Company Payments. Any determination required under this Section X shall be made in writing by the independent public accountant of the Company (iithe “Accountants”), whose determination shall be conclusive and binding for all purposes upon the Company and the Executive. For purposes of making any calculation required by this Section X, 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. If there is a reduction of the Company Payments pursuant to this Section X, such reduction shall occur in the following order: (A) any cash severance payable by reference to the Executive’s Base Salary or Annual Bonus, (B) any other cash amount payable to the Executive, (C) any employee benefit valued as a “parachute payment,” and (D) acceleration of vesting of any outstanding equity award. For the avoidance of doubt, in the event that additional Company Payments are made to the Executive after the application of the cutback in this Section X, which additional Company Payments result in the cutback no longer being applicable, the Company shall pay the Executive an additional amount equal to the value of the Company Payments that were originally cutback. The Company shall determine at the end of each calendar year whether any nonsuch restoration is necessary based on additional Company 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 the Executive be entitled to a tax gross-cash benefits up or other payment in respect of any deferred excise tax, interest or accelerated payments or benefits included in penalties that may be imposed on the Total Company Payments shall be determined by a nationally-recognized public accounting firm, selected by the Employee, in accordance with the principles of Sections 280G(d)(3) and (4) reason of the Code and the regulations application of Section 280G or proposed regulations thereunder; and (iii) in the event of any uncertainty as to whether a reduction in Total Payments to the Employee is required pursuant hereto, the Company or the Subsidiary shall initially make all payments otherwise required to be paid to the Employee hereunder, and any amounts so paid which are ultimately determined not to have been payable hereunder other than as a loan to the Employee, either (x) upon mutual agreement Section 4999 of the Employee and the Company or the Subsidiary, as applicable, or (y) upon Tax Counsel furnishing the Employee with its written opinion setting forth the amount of such payments not to have been so payable other than as a loan to the Employee under this Section 11, or (z) in the event a portion of the Total Payments shall be finally determined by a court or an Internal Revenue Service proceeding to have otherwise been an "excess parachute payment," the amounts so determined in (x), (y) or (z) shall constitute a loan by the Company or the Subsidiary, as applicable, to the Employee under this Section 11, and the Employee shall repay to the Company within ten (10) business days after the time of such mutual agreement, such opinion is so furnished to the Employee, or of such determination, as applicable, the amount of such loan plus interest thereon at the rate provided in Section 1274(b)(2)(B) of the Code for the period from the date of the initial payments to the Employee to the date of such repayment by the Employee. All fees and expenses of any Tax Counsel or accounting firm selected under this Section 11 shall be borne solely by the Company or the SubsidiaryCode.

Certain Taxes. Notwithstanding anything Anything in this Agreement or in any other plan, program or agreement to the contrarycontrary notwithstanding and except as set forth below, in the amount of event that (i) the Executive becomes entitled to any cash payment to be received by the Employee pursuant to this Agreement benefits or payments under Section VII hereof and (ii) it shall be reduced (but not below zero) by the amount, if any, necessary to prevent any part of determined that any payment or benefit in distribution by the "nature of compensation" received or Company to be received by or for the benefit of the Employee in connection with a change in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Code), and the regulations or proposed regulations thereunder) Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement (but without regard to this Section 11), any other agreement, contract, plan or arrangement of the Company or the Subsidiary or any affiliate of either or any person whose action results in such a change in ownership or effective control or change in ownership of assets or any affiliate of such person) (such foregoing payments or benefits referred to collectively as the "Total Payments"), from being treated as an "excess parachute payment" within the meaning of Section 280G(b)(1) of the Codeotherwise, but only if and to the extent that such reduction will also result in, after taking into account all applicable state, local and Federal taxes (computed at the highest applicable marginal rate) including any taxes payable pursuant to Section 4999 of the Code (and any similar tax that may hereafter be imposed under any successor provision or by any taxing authority), a greater after-tax benefit to the Employee than the after-tax benefit to the Employee of the Total Payments computed determined without regard to any such reduction. For purposes of the foregoing, additional payments required under this Section X) (i) no portion of the Total Payments shall be taken into account which in the opinion of nationally-recognized tax counsel selected by the Employee (a "Tax CounselPayment") either (A) does not constitute either a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, (B) represents reasonable compensation within the meaning of Section 280G(b)(4) of the Code or (C) is not otherwise would be subject to the excise tax imposed by Section 4999 of the Code; , or any interest or penalties are incurred by the Executive with respect to such excise tax (iisuch excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the value Executive of all taxes (including any noninterest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-cash benefits or Up Payment, the Executive retains an amount of any deferred or accelerated payments or benefits included in the Total Payments Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section X, if it shall be determined by that the Executive is entitled to a nationallyGross-recognized public accounting firmUp Payment, selected by but that the Employee, in accordance with the principles of Sections 280G(d)(3) and (4) Payments do not exceed 110% of the Code and greatest amount (the regulations or proposed regulations thereunder; and (iii"Reduced Amount") in the event of any uncertainty as to whether a reduction in Total Payments to the Employee is required pursuant hereto, the Company or the Subsidiary shall initially make all payments otherwise required to that could be paid to the Employee hereunderExecutive such that the receipt of Payments would not give rise to any Excise Tax, and any amounts so paid which are ultimately determined not to have been payable hereunder other than as a loan then no Gross-Up Payment shall be made to the Employee, either (x) upon mutual agreement of the Employee Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount, provided, however, that the payments or benefits to be eliminated in effecting such reduction shall be agreed upon between the Company or and the SubsidiaryExecutive. All determinations required to be made under this Section X, as applicable, or (y) upon Tax Counsel furnishing the Employee with its written opinion setting forth including whether and when a Gross-Up Payment is required and the amount of such payments not to have been so payable other than as a loan to the Employee under this Section 11, or (z) in the event a portion of the Total Payments shall be finally determined by a court or an Internal Revenue Service proceeding to have otherwise been an "excess parachute payment," the amounts so determined in (x), (y) or (z) shall constitute a loan by the Company or the Subsidiary, as applicable, to the Employee under this Section 11, Gross-Up Payment and the Employee shall repay assumptions to the Company within ten (10) business days after the time of such mutual agreement, such opinion is so furnished to the Employee, or of be utilized in arriving at such determination, shall be made by Deloitte & Touche LLP or such other certified public accounting firm as applicable, may be designated by the amount of such loan plus interest thereon at Company. In no event will the rate provided in Section 1274(b)(2)(BGross-Up Payment be made later than forty-five (45) of the Code for the period from days following the date of on which the initial payments Executive remits the Excise Tax to the Employee to the date of such repayment by the Employee. All fees and expenses of any Tax Counsel or accounting firm selected under this Section 11 shall be borne solely by the Company or the SubsidiaryInternal Revenue Service.

Certain Taxes. Notwithstanding anything in this Agreement to the contrarycontrary in Section 6.1 of the Employment Agreement, in the amount event that it shall be determined that any payment, award, benefit or distribution (or any acceleration of any cash payment to be received by the Employee pursuant to this Agreement shall be reduced (but not below zeropayment, award, benefit or distribution) by the amount, if any, necessary Company or any of its affiliated entities (including their respective successors) to prevent any part of any payment or benefit in the "nature of compensation" received or to be received by or for the your benefit of the Employee in connection with a change in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the Company's assets Acquisition (within the meaning of Section 280G of the Code), and the regulations or proposed regulations thereunder) (whether pursuant to the terms of this Agreement (but without regard to this Section 11), any other agreement, contract, plan or arrangement of the Company or the Subsidiary or any affiliate of either or any person whose action results in such a change in ownership or effective control or change in ownership of assets or any affiliate of such person) (such foregoing payments or benefits referred to collectively as the "Total Payments"), from being treated as an "excess parachute payment" within the meaning of Section 280G(b)(1) of the Code, but only if and to the extent that such reduction will also result in, after taking into account all applicable state, local and Federal taxes (computed at the highest applicable marginal rate) including any taxes payable pursuant to Section 4999 of the Code (and any similar tax that may hereafter be imposed under any successor provision or by any taxing authority), a greater after-tax benefit to the Employee than the after-tax benefit to the Employee of the Total Payments computed determined without regard to any such reduction. For purposes of additional payments required under this Section 1) (the foregoing, (i“Payments”) no portion of the Total Payments shall would be taken into account which in the opinion of nationally-recognized tax counsel selected by the Employee ("Tax Counsel") either (A) does not constitute either a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, (B) represents reasonable compensation within the meaning of Section 280G(b)(4) of the Code or (C) is not otherwise subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code; ”), or any interest or penalties are incurred by you with respect to such excise tax (such excise tax, together with any such interest and penalties, the “Excise Tax”), then the Company shall pay you an additional payment (which, for this purpose, includes withholding and remittance of taxes by Parent or the Company on your behalf) (a “Reimbursement Payment”) in an amount such that after payment by you of all taxes (including, without limitation, any income taxes and any interest and penalties imposed with respect to, and any excise tax imposed upon, the Reimbursement Payment), you retain an amount of the Reimbursement Payment equal to the Excise Tax imposed upon the Payments. For purposes of determining the amount of the Reimbursement Payment, you shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Reimbursement Payment is to be made and (ii) pay applicable state and local income taxes at the value highest marginal rate of any non-cash benefits or taxation for the calendar year in which the Reimbursement Payment is to be made, net of any deferred or accelerated payments or benefits included in the Total Payments shall be determined by a nationally-recognized public accounting firmmaximum reduction, selected by the Employeeif any, in accordance with the principles of Sections 280G(d)(3) and (4) of the Code and the regulations or proposed regulations thereunder; and (iii) in the event of any uncertainty as to whether a reduction in Total Payments to the Employee is required pursuant hereto, the Company or the Subsidiary shall initially make all payments otherwise required to federal income taxes which could be paid to the Employee hereunder, and any amounts so paid which are ultimately determined not to have been payable hereunder other than as a loan to the Employee, either (x) upon mutual agreement of the Employee and the Company or the Subsidiary, as applicable, or (y) upon Tax Counsel furnishing the Employee with its written opinion setting forth the amount obtained from deduction of such payments not state and local taxes. The Reimbursement Payment payable with respect to have been so payable other any Payment will be made as soon as reasonably practicable following the determination by 280G Counsel (as defined below) that the Reimbursement Payment is due (and, subject to Section 2, in no event later than as a loan to the Employee under this Section 11, or (z) in the event a portion of the Total Payments shall be finally determined by a court or an Internal Revenue Service proceeding to have otherwise been an "excess parachute payment," the amounts so determined in (x60 days following such Payment), (y) or (z) shall constitute a loan by the Company or the Subsidiary, as applicable, to the Employee under this Section 11, and the Employee shall repay to the Company within ten (10) business days after the time of such mutual agreement, such opinion is so furnished to the Employee, or of such determination, as applicable, the amount of such loan plus interest thereon at the rate provided in Section 1274(b)(2)(B) of the Code for the period from the date of the initial payments to the Employee to the date of such repayment by the Employee. All fees and expenses of any Tax Counsel or accounting firm selected under this Section 11 shall be borne solely by the Company or the Subsidiary.

Certain Taxes. Notwithstanding anything in any other provision of this Agreement to the contrary, in the amount of event that any cash payment to be that is either received by the Employee pursuant Executive or paid by the Company on the Executive’s behalf or any property, or any other benefit provided to the Executive under this Agreement shall be reduced (but not below zero) by or under any other plan, arrangement or agreement with the amount, if any, necessary to prevent Company or any part of any payment other person whose payments or benefit in the "nature of compensation" received or to be received by or for the benefit of the Employee in connection with benefits are treated as contingent on a change in the of ownership or effective control of the Company (or a change in the ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Code), and the regulations Company) or proposed regulations thereunder) (whether pursuant to the terms of this Agreement (but without regard to this Section 11), any other agreement, contract, plan or arrangement of person affiliated with the Company or the Subsidiary or any affiliate of either or any such person whose action results in such a change in ownership or effective control or change in ownership of assets or any affiliate of such person) (such foregoing payments or benefits referred to collectively as the "Total Payments"), from being treated as an "excess parachute payment" within the meaning of Section 280G(b)(1) of the Code, but only if and such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively the “Company Payments”), will be subject to the extent that such reduction will also result in, after taking into account all applicable state, local and Federal taxes tax (computed at the highest applicable marginal rate“Excise Tax”) including any taxes payable pursuant to imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed under any successor provision or by any taxing authority), a greater after-tax benefit then the Executive will be entitled to the Employee than the after-tax benefit to the Employee of the Total Payments computed without regard to any such reduction. For purposes of the foregoing, receive either (i) no the full amount of the Company Payments, or (ii) a portion of the Total Company Payments shall be taken into account which having a value equal to $1 less than three (3) times the Executive’s “base amount” (as such term is defined in the opinion of nationally-recognized tax counsel selected by the Employee ("Tax Counsel") either (A) does not constitute either a "parachute payment" within the meaning of Section 280G(b)(2280G(b)(3)(A) of the Code), whichever of clauses (Bi) represents reasonable compensation within the meaning of Section 280G(b)(4) of the Code or and (C) is not otherwise 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; , results in the receipt by the Executive on an after-tax basis, of the greatest portion of the Company Payments. Any determination required under this Section X shall be made in writing by the independent public accountant of the Company (iithe ”Accountants”), whose determination shall be conclusive and binding for all purposes upon the Company and the Executive. For purposes of making any calculation required by this Section X, 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. If there is a reduction of the Company Payments pursuant to this Section X, such reduction shall occur in the following order: (A) any cash severance payable by reference to the Executive’s Base Salary or Annual Bonus, (B) any other cash amount payable to the Executive, (C) any employee benefit valued as a “parachute payment,” and (D) acceleration of vesting of any outstanding equity award. For the avoidance of doubt, in the event that additional Company Payments are made to the Executive after the application of the cutback in this Section X, which additional Company Payments result in the cutback no longer being applicable, the Company shall pay the Executive an additional amount equal to the value of the Company Payments that were originally cutback. The Company shall determine at the end of each calendar year whether any nonsuch restoration is necessary based on additional Company 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 the Executive be entitled to a tax gross-cash benefits up or other payment in respect of any deferred excise tax, interest or accelerated payments or benefits included in penalties that may be imposed on the Total Company Payments shall be determined by a nationally-recognized public accounting firm, selected by the Employee, in accordance with the principles of Sections 280G(d)(3) and (4) reason of the Code and the regulations application of Section 280G or proposed regulations thereunder; and (iii) in the event of any uncertainty as to whether a reduction in Total Payments to the Employee is required pursuant hereto, the Company or the Subsidiary shall initially make all payments otherwise required to be paid to the Employee hereunder, and any amounts so paid which are ultimately determined not to have been payable hereunder other than as a loan to the Employee, either (x) upon mutual agreement Section 4999 of the Employee and the Company or the Subsidiary, as applicable, or (y) upon Tax Counsel furnishing the Employee with its written opinion setting forth the amount of such payments not to have been so payable other than as a loan to the Employee under this Section 11, or (z) in the event a portion of the Total Payments shall be finally determined by a court or an Internal Revenue Service proceeding to have otherwise been an "excess parachute payment," the amounts so determined in (x), (y) or (z) shall constitute a loan by the Company or the Subsidiary, as applicable, to the Employee under this Section 11, and the Employee shall repay to the Company within ten (10) business days after the time of such mutual agreement, such opinion is so furnished to the Employee, or of such determination, as applicable, the amount of such loan plus interest thereon at the rate provided in Section 1274(b)(2)(B) of the Code for the period from the date of the initial payments to the Employee to the date of such repayment by the Employee. All fees and expenses of any Tax Counsel or accounting firm selected under this Section 11 shall be borne solely by the Company or the SubsidiaryCode.