Common use of Code Section 280G Clause in Contracts

Code Section 280G. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 3(b), would be subject to the excise tax imposed by Section 4999 of the Code, then the Employee’s benefits under Section 2 of this Agreement shall be either: (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such severance and other benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 3(b) shall be made in writing by the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 3(b), 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 Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 3(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 3(b).

Code Section 280G. In the event that the severance and any other benefits provided for in this Agreement letter agreement or otherwise payable to the Employee you (i) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and (ii) but for this Section 3(b), would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then the Employee’s your benefits under Section 2 of this Agreement letter agreement shall be either: (i) a. delivered in full, ; or (ii) b. delivered as to such lesser extent which that would result in no portion of such severance and other benefits being subject to excise tax under the Excise Tax, (with first a pro rata reduction of (i) cash payments subject to Section 4999 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and then a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the CodeExcise Tax, results in the your receipt by the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless you and the Company and the Employee otherwise agree in writing, any the determination of your excise tax liability and the amount required to be paid under this Section 3(b) shall be made in writing by an accounting firm to be selected by reasonable agreement between you and the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”), whose determination shall be conclusive and binding upon the Employee you and the Company for all purposes. For purposes of making the calculations required by this Section 3(b)Section, the Accountants 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 You and the Employee Company shall furnish to the Accountants accountants such information and documents as the Accountants accountants may reasonably request in order to make a determination under this Section 3(b)Section. The Company shall bear all costs the Accountants accountants may reasonably incur in connection with any calculations contemplated by this Section 3(b)Section.

Code Section 280G. In the event that the severance and other benefits provided for in this Agreement any payments, distributions, benefits, or otherwise entitlements of any type payable to Executive (the Employee “Total Payments”) would (i) constitute “parachute payments” within the meaning of Section 280G of the Code (which will not include any portion of payments allocated to the restrictive covenant provisions of Section 7 hereof that are classified as payments of reasonable compensation for purposes of Section 280G of the Code), and (ii) but for this Section 3(b), paragraph would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then the Employee’s benefits under Section 2 of this Agreement Total Payments shall be either: : (ia) delivered provided in full, or or (iib) delivered provided as to such lesser extent which as would result in no portion of such severance and other benefits Total Payments being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state state, and local income taxes and the excise tax imposed by Section 4999 of the CodeExcise Tax, results in the Executive’s receipt by the Employee on an after-tax basis, basis of the greatest amount of severance benefitsthe Total Payments, notwithstanding that all or some portion of such severance benefits the Total Payments may be taxable under Section 4999 of subject to the CodeExcise Tax. Unless the Company and the Employee Executive otherwise agree in writing, any determination required under this Section 3(b) 25 shall be made in writing in good faith based on the advice of a nationally recognized accounting firm selected by the Company’s independent public accountants immediately prior to the Change Company (with approval of Control Executive) (the “Accountants”). In the event of a reduction of benefits hereunder, whose determination benefits shall be conclusive reduced by first reducing or eliminating the portion of the Total Payments that are payable in cash under Section 5 and binding upon the Employee and the Company for all purposesthen by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 3(b)25, 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 Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order require to make a determination under this Section 3(b). The 25, and the Company shall bear the cost of all costs fees the Accountants may reasonably incur charge in connection with any calculations contemplated by this Section 3(b)25.

Code Section 280G. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to the Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 3(b)4, would be subject to the excise tax imposed by Section 4999 of the Code, then the EmployeeExecutive’s severance benefits under Section 2 3(b) of this Agreement shall be either: (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such severance and other benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and the Employee Executive otherwise agree in writing, any determination required under this Section 3(b) 4 shall be made in writing by the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”), whose determination shall be conclusive and binding upon the Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 3(b)4, 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 Employee 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 3(b)Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 3(b)4.

Code Section 280G. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to the Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 3(b4(b), would be subject to the excise tax imposed by Section 4999 of the Code, then the EmployeeExecutive’s benefits under Section 2 3 of this Agreement shall be either: (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such severance and other benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and the Employee Executive otherwise agree in writing, any determination required under this Section 3(b4(b) shall be made in writing by the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”), whose determination shall be conclusive and binding upon the Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 3(b4(b), 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 Employee 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 3(b4(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 3(b4(b). Any reduction in payments and/or benefits required by this Section 4(b) will occur in the following order: (i) reduction of cash payments; (ii) reduction of vesting acceleration of equity awards; and (iii) reduction of other benefits paid or provided to the Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant for the Executive’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis.

Code Section 280G. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to the Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 3(b4(b), would be subject to the excise tax imposed by Section 4999 of the Code, then the EmployeeExecutive’s benefits under Section 2 3 of this Agreement shall be either: (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such severance and other benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and the Employee Executive otherwise agree in writing, any determination required under this Section 3(b4(b) shall be made in writing by the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”), whose determination shall be conclusive and binding upon the Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 3(b4(b), 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 Employee 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 3(b4(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 3(b4(b).

Code Section 280G. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 3(b)4, would be subject to the excise tax imposed by Section 4999 of the Code, then the Employee’s severance benefits under Section 2 3(b) of this Agreement shall be either: (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such severance and other benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 3(b) 4 shall be made in writing by the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 3(b)4, 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 Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 3(b)Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 3(b)4.

Code Section 280G. In Notwithstanding any other provision of this Agreement or any other agreement between the Company and the Executive to the contrary, in the event that any payment that is either received by the severance and Executive or paid by the Company on the Executive’s behalf or any property, or any other benefits benefit provided for in to the Executive under this Agreement or otherwise payable to under any other plan, arrangement or agreement with the Employee (i) constitute “parachute payments” within the meaning Company or any other person whose payments or benefits are treated as contingent on a change of Section 280G ownership or control of the Code and Company (iior in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but for this Section 3(bonly if such payment or other benefit is in connection with the Executive’s employment by the Company) (collectively the “Company Payments”), would will be subject to the excise tax imposed by Section 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 the Employee’s benefits under Section 2 of this Agreement shall Executive will be either: entitled to receive either (i) delivered in fullthe full amount of the Company Payments, or or (ii) delivered as to such lesser extent which would result in no a portion of the Company Payments having a value equal to $1 less than three (3) times the Executive’s “base amount” (as such severance and other benefits being subject to excise tax under term is defined in Section 4999 280G(b)(3)(A) of the Code), whichever of the foregoing amountsclauses (i) and (ii), after taking into account the applicable federal, state state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and the Employee otherwise agree in writing, any Payments. Any determination required under this Section 3(b1(e) shall be made in writing by the Company’s Golden Parachute Tax Solutions, LLC, or such other independent public accountants immediately prior to accountant as may be selected by the Change of Control (Executive in the “Accountants”)Executive’s sole discretion, whose determination shall shall, subject to review and comment by the Company, be conclusive and binding for all purposes upon the Employee Company and the Company for all purposesExecutive. For purposes of making the calculations any calculation required by this Section 3(b1(e), the Accountants such accountant 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 If there is a reduction of the Company Payments pursuant to this Section 1(e), such reduction shall occur in the following order (with Company Payments in each category being first reduced by the portion of such Company Payments that is not deferred compensation subject to Section 409A of the Code and then by the Employee shall furnish portion of such Company Payments that is deferred compensation subject to Section 409A of the Code (and, in each case, beginning with the Company Payments in each category scheduled to be made latest in time (and pro rata with respect to Company Payments in each category scheduled to be made at the same time))): (A) the Executive’s Transaction Bonus, (B) any cash severance payable to the Accountants such information Executive, (C) any other cash amount payable to the Executive, (D) any employee benefit valued as a “parachute payment,” and documents as (E) acceleration of vesting of any outstanding equity award. For the Accountants may reasonably request avoidance of doubt, in order the event that additional Company Payments are made to make a determination under the Executive after the application of the cutback in this Section 3(b1(e). The , which additional Company Payments result in the cutback no longer being applicable, the Company shall bear all costs pay the Accountants Executive an additional amount equal to the value of the Company Payments that were originally cutback. To the extent that any such restoration is necessary based on additional Company Payments (if any) made during such calendar year, the Company shall pay such restoration within seventy-five (75) days following the last day of such calendar year. In no event whatsoever shall the Executive be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may reasonably incur in connection with any calculations contemplated be imposed on the Company Payments by this reason of the application of Section 3(b)280G of the Code or Section 4999 of the Code.

Code Section 280G. In the event that the severance and other benefits provided for in this the Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 3(b)Addendum, would be subject to the excise tax imposed by Section 4999 of the Code, then the Employee’s benefits lump sum cash severance benefit under Section 2 of this the Agreement shall be either: (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such severance and other benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing following amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code4999, results in the receipt by the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code: (a) payment in full, or (b) payment of such lesser amount which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 3(b) Addendum shall be made in writing by the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 3(b)Addendum, 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 Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 3(b). Addendum The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 3(b).Addendum

Code Section 280G. In the event that the severance and other benefits provided for in this Agreement letter agreement or otherwise payable to the Employee you (i) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and (ii) but for this Section 3(b), would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then the Employee’s your benefits under Section 2 of this Agreement letter agreement shall be either: (i) a. delivered in full, ; or (ii) b. delivered as to such lesser extent which that would result in no portion of such severance and other benefits being subject to excise tax under the Excise Tax, (with first a pro rata reduction of (i) cash payments subject to Section 4999 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and then a pro rata cancellation of (i) equity- based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the CodeExcise Tax, results in the your receipt by the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless you and the Company and the Employee otherwise agree in writing, any the determination of your excise tax liability and the amount required to be paid under this Section 3(b) shall be made in writing by an accounting firm to be selected by reasonable agreement between you and the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”), whose determination shall be conclusive and binding upon the Employee you and the Company for all purposes. For purposes of making the calculations required by this Section 3(b)Section, the Accountants 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 You and the Employee Company shall furnish to the Accountants accountants such information and documents as the Accountants accountants may reasonably request in order to make a determination under this Section 3(b)Section. The Company shall bear all costs the Accountants accountants may reasonably incur in connection with any calculations contemplated by this Section 3(b)Section.

Code Section 280G. In Notwithstanding any other provision of this Agreement to the event contrary, if the payments or benefits that the severance and other benefits provided for in Executive would receive from the Company under this Agreement or otherwise payable to (including, without limitation, any payment, benefit, entitlement or distribution paid or provided by the Employee person or entity effecting a change in control) in connection with a change of ownership or control of the Company (ior in the ownership of a substantial portion of the assets of the Company) (the “Total Payments”) (a) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and (iib) but for this Section 3(b)21, would be subject to the excise tax imposed by Section 4999 of the Code, then the Employee’s benefits under Section 2 of this Agreement shall Executive will be either: entitled to receive either (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such severance and other benefits being subject to excise tax under Section 4999 the full amount of the Code, whichever of the foregoing amounts, Total Payments (taking into account the full value of any equity awards), or (ii) a portion of the Total Payments having a value equal to $1 less than three (3) times the 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 state, and local income and employment taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Employee Executive, on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the CodeTotal Payments. Unless the Company and the Employee otherwise agree in writing, any Any determination required under this Section 3(b) 21 shall be made in writing by an accounting firm selected by the Company’s independent public accountants immediately prior Executive and reasonably acceptable to the Change of Control Company (the “Accountants”), whose determination shall be conclusive and binding for all purposes upon the Employee Company and the Executive. The Company shall be responsible for and promptly pay all purposesfees and expenses of the Accountants in connection with or arising from the determinations contemplated hereby. For purposes of making the calculations required by this Section 3(b)21, 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 pursuant to this Section 21 of the Employee shall furnish Total Payments to be delivered to the Accountants Executive, such information reduction shall occur in the following order: (i) any cash severance payable by reference to Base Salary or seasonal bonus, (ii) any other cash amount payable to the Executive, (iii) any benefit valued as a “parachute payment,” and documents as (iv) acceleration of vesting of any equity award. For the Accountants may reasonably request avoidance of doubt, in order the event additional Total Payments are made to make a determination under the Executive after the application of the cutback in this Section 3(b)21, which additional Total Payments result in the cutback no longer being applicable, the Company shall pay to the Executive an additional amount equal to the value of the Total Payments which were originally cutback. The Company Accountants shall bear all costs determine at the Accountants may reasonably incur in connection with end of each calendar year whether any calculations contemplated by this Section 3(b)such restoration is necessary based on additional Total 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.

Code Section 280G. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to the Employee you (ia) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (iib) but for this Section 3(b)7, would be subject to the excise tax imposed by Section 4999 of the Code, then the Employee’s then, at your discretion, your benefits under Section 2 of this Agreement shall be either: payable either (i) delivered in full, or or (ii) delivered as to such lesser extent amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code4999, results in the receipt by the Employee you on an after-tax basis, of the greatest amount of severance benefitsbenefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable Hxxxxxxx Xxxxx under Section 4999 of the Code. Any reduction shall be made in the following manner: (A) first a pro- rata reduction of (1) cash payments subject to Section 409A of the Code as deferred compensation and (2) cash payments not subject to Section 409A of the Code, and (B) second a pro rata cancellation of (1) equity-based compensation subject to Section 409A of the Code as deferred compensation and (2) equity- based compensation not subject to Section 409A of the Code. Reduction in either cash payments or equity compensation benefits shall be made pro-rata between and among benefits which are subject to Section 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and the Employee you otherwise agree in writing, any determination required under this Section 3(b) 7 shall be made in writing by the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”), whose determination shall be conclusive and binding upon the Employee you and the Company for all purposes. For purposes of making the calculations required by this Section 3(b)7, 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 Employee you shall furnish to the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 3(b)7. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 3(b)7.

Code Section 280G. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to the Employee you (ia) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (iib) but for this Section 3(b)6, would be subject to the excise tax imposed by Section 4999 of the Code, then the Employee’s then, at your discretion, your benefits under Section 2 of this Agreement shall be either: payable either (i) delivered in full, or or (ii) delivered as to such lesser extent amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code4999, results in the receipt by the Employee you on an after-tax basis, of the greatest amount of severance benefitsbenefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made as a pro-rata reduction of cash payments subject to Section 409A of the Code as deferred compensation and cash payments not subject to Section 409A of the Code. Reduction in cash payments shall be made pro-rata between and among benefits which are subject to Section 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and the Employee you otherwise agree in writing, any determination required under this Section 3(b) 6 shall be made in writing by the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”), whose determination shall be conclusive and binding upon the Employee you and the Company for all purposes. For purposes of making the calculations required by this Section 3(b)6, 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 Employee you shall furnish to the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 3(b)6. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 3(b)6.

Code Section 280G. In the event that the severance and acceleration of equity awards or other benefits provided for in this Agreement or otherwise payable to Executive (collectively, the Employee “Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 3(b)8, would be subject to the excise tax imposed by Section 4999 of the Code, then the Employee’s benefits under Section 2 of this Agreement shall such Payments will be either: (ia) delivered in full, or (iib) delivered as to such lesser extent which would result in no portion of such severance and other benefits Payments being subject to the excise tax under Code Section 4999 of the Code4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Code Section 4999 of the Code4999, results in the receipt by the Employee Executive on an after-tax basis, of the greatest amount of severance benefitsPayments, notwithstanding that all or some portion of such severance benefits Payments may be taxable under Code Section 4999 of 4999. To the Code. Unless extent the Company submits any Payment to the Company’s shareholders for approval in accordance with Treasury Reg. Section 1.280G-1 Q&A 7, the foregoing provisions will not apply following such submission and such payments and benefits will be treated in accordance with the Employee otherwise agree results of such vote, except that any reduction in, or waiver of, such payments or benefits required by such vote will be applied without any application of discretion by Executive and in writing, the order prescribed by this section. In no event will Executive have any determination required under this Section 3(b) shall be made in writing discretion with respect to the ordering of payment reductions. A nationally recognized certified professional services firm selected by the Company, the Company’s independent public accountants immediately prior legal counsel or such other person or entity to which the Change of Control parties mutually agree (the “AccountantsFirm”), whose determination shall ) will perform the foregoing calculations related to the Excise Tax. The Company will bear all expenses with respect to the determinations by the Firm required to be conclusive and binding upon the Employee and the Company for all purposesmade hereunder. For purposes of making the calculations required by this Section 3(b)Section, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Company and the Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 3(b8(b). The Firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within 15 calendar days after the date on which Executive’s right to benefits is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the Firm made hereunder will be final, binding, and conclusive upon the Company and Executive. The firm shall bear all costs take into account the Accountants may reasonably incur reasonable value for services rendered (including Executive’s refraining from rendering services) before and after an applicable Change in connection with any calculations contemplated by this Section 3(b)Control transaction.

Code Section 280G. In Notwithstanding any other provision of this Agreement to the event contrary, if the payments or benefits that the severance and other benefits provided for in Executive would receive from the Company under this Agreement or otherwise payable to (including, without limitation, any payment, benefit, entitlement or distribution paid or provided by the Employee person or entity effecting a change in control) in connection with a change of ownership or control of the Company (ior in the ownership of a substantial portion of the assets of the Company) (the “Total Payments”) (a) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and (iib) but for this Section 3(b)24, would be subject to the excise tax imposed by Section 4999 of the Code, then the Employee’s benefits under Section 2 of this Agreement shall Executive will be either: entitled to receive either (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such severance and other benefits being subject to excise tax under Section 4999 the full amount of the Code, whichever of the foregoing amounts, Total Payments (taking into account the full value of any equity awards), or (ii) a portion of the Total Payments having a value equal to $1 less than three (3) times the 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 state, and local income and employment taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Employee Executive, on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the CodeTotal Payments. Unless the Company and the Employee otherwise agree in writing, any Any determination required under this Section 3(b) 24 shall be made in writing by an accounting firm selected by the Company’s independent public accountants immediately prior Executive and reasonably acceptable to the Change of Control Company (the “Accountants”), whose determination shall be conclusive and binding for all purposes upon the Employee Company and the Executive. The Company shall be responsible for and promptly pay all purposesfees and expenses of the Accountants in connection with or arising from the determinations contemplated hereby. For purposes of making the calculations required by this Section 3(b)24, 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 pursuant to this Section 24 of the Employee shall furnish Total Payments to be delivered to the Accountants Executive, such information reduction shall occur in the following order: (i) any cash severance payable by reference to Base Salary or seasonal bonus, (ii) any other cash amount payable to the Executive, (iii) any benefit valued as a “parachute payment,” and documents as (iv) acceleration of vesting of any equity award. For the Accountants may reasonably request avoidance of doubt, in order the event additional Total Payments are made to make a determination under the Executive after the application of the cutback in this Section 3(b)24, which additional Total Payments result in the cutback no longer being applicable, the Company shall pay to the Executive an additional amount equal to the value of the Total Payments which were originally cutback. The Company Accountants shall bear all costs determine at the Accountants may reasonably incur in connection with end of each calendar year whether any calculations contemplated by this Section 3(b)such restoration is necessary based on additional Total 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.