Common use of Code Section 280G Clause in Contracts

Code Section 280G. If any payment or benefit received or to be received by Executive in connection with a “change in ownership or control” of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Notwithstanding any payment provision in this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection either alone or together with a “change in ownership other payments or control” of benefits which Executive receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code)") and/or any corresponding and applicable state law provision, whether such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to the terms Section 9 of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof of such payments shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided, however, that such reduction shall only be made if, by reason of such reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 1214, “"net after-after tax benefit” " shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive Code and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive any corresponding and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute paymentsapplicable state law provision.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Anything in this Agreement to the contrary notwithstanding, prior to the payment of any compensation or benefits payable under this Agreement, the certified public accountants of Employer who served as accountants immediately prior to a change of control (the “Certified Public Accountants”) shall determine as promptly as practical and in any event within 20 business days following a change of control whether any payment or distribution by Employer to or for the benefit received of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any other plans or agreements or otherwise) would more likely than not be nondeductible by Employer for Federal income purposes because of Code section 280G; and if it is, then the aggregate present value of amounts payable or distributable to or for the benefit of Employee pursuant to this Agreement (such payments or distributions pursuant to this Agreement are thereinafter referred to as “Agreement Payments”) shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section, the “Reduced Amount” shall be an amount expressed in present value, which maximizes the aggregate present value of the Agreement Payments without causing any payment to be received nondeductible by Executive in connection with a “change in ownership or control” Employer because of the Company (within the meaning of said Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate . The reduction of the Company (Agreement Payments hereunder by the “Payments”), Reduction Amount shall be made by the Employer in such manner as to result in Employee receiving the greatest amount of after-tax benefits hereunder. If under this Section the Certified Public Accountants determine that any payment would constitute a “parachute payment” within the meaning more likely than not be nondeductible by Employer because of Section 280G of the Code, the Payments Employer shall be reduced promptly give Employee notice to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 effect and a copy of the Code but only if, by reason detailed calculation thereof and of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was madeReduced Amount. For purposes of this Section 12Section, “net after-tax benefit” shall mean (i) the total of all payments and the present value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate determined in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iiiaccordance with Section 280G(d)(4) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and All determinations made by the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments Certified Public Accountants shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, binding upon Employer and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by ExecutiveEmployee.

Code Section 280G. If any payment or benefit received or to be received by Executive in connection with a “change in ownership or control” Employee would receive from the Company, Parent, any member of the Company (within the meaning of Section 280G of the Code)Parent Group, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company Company, any acquirer of the Company, and/or pursuant to this Agreement , but determined without regard to any additional payment required under this section, (collectively, the “Payments280G Payment”), ) would (x) constitute a “parachute payment” within the meaning of Section 280G 2800 of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall and (y) be subject to the excise tax imposed by Section 4999 of the Code but only ifor any interest or penalties payable with respect to such excise tax (such excise tax, by reason together with any such interest and penalties, are hereinafter collectively referred to as the “280G Excise Tax”), then such 2800 Payments shall be either (a) the full amount of such reduction2800 Payments or (b) such lesser amount (with cash payments being reduce first) as would, resulting no portion of flexible payments pending subject to the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 122800 Excise Tax, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G whichever of the Codeforegoing amounts, less (ii) taking into account the amount of all applicable federal, state and local employment taxes, income taxes payable with respect and the 2800 Excise Tax, results in Employee’s receipt, on an after-tax basis, of the greater amount of the 2800 Payments notwithstanding that all or some portion of the 2800 Payments may be subject to the foregoing calculated at 2800 Excise Tax. The accounting firm engaged by the maximum marginal income tax rate Company for each year in which general audit purposes as of the day prior to the effective date of the change of control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is also service as accountant or auditor for the individual, entity or group which will control the Company upon the occurrence of a change of control, the Company shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by appoint a nationally recognized accounting firm (other than the “Accounting Firm”) selected accounting firm engaged by Executive and reasonably acceptable the Company for general audit purposes to make the determinations required hereunder. The Company shall bear all expenses with respect to the Company, provided, determinations by such accounting firm required to be made hereunder. The- Company shall request that the Accounting Firm’s determination shall be made based upon “substantial authority” within accounting firm engaged to make the meaning of Section 6662 of the Code. The Accounting Firm shall determinations hereunder provide Executive and its calculations, together with detailed supporting documentation, to the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business Employee within thirty (30) days prior to after the date on which Executive would be entitled such accounting firm has been engaged to receive a Payment (make such determinations or such other time as soon as practicable in requested by the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any Company or all amounts which may constitute “excess parachute payments.” Employee. If the Accounting Firm accounting firm determines that such reduction no 2800 Excise Tax is required by this Section 12payable with respect to a 2800 Payment, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay request that it furnish the Company and Employee with an opinion reasonably acceptable to Employee that no 2800 Excise Tax will be imposed with respect to such reduced amount to Executive2800 Payment. Executive Any good· faith determinations of the accounting firm made hereunder shall be final, binding, and conclusive upon the Company and Employee. Notwithstanding the foregoing, if the Internal Revenue Service determines that 2800 Excise Taxes are owed, the Company shall each provide promptly pay the Accounting Firm access 2800 Tax Restoration Payment to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by ExecutiveEmployee.

Code Section 280G. If In the event that it is determined that any payment payments or benefit received benefits provided under this Agreement, together with any payments or benefits to be received provided under any other plan, program, arrangement or agreement, would constitute parachute payments within the meaning of Section 280G of the Code and would, but for this Section 13 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (the “Excise Tax”), then the amounts of any such payments or benefits under this Agreement and such other arrangements shall be either (a) paid in full or (b) reduced to the minimum extent necessary to ensure that no portion of the payments or benefits is subject to the Excise Tax, whichever of the foregoing (a) or (b) results in the Executive’s receipt on an after-tax basis of the greatest amount of payments and benefits after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax). The Company shall cooperate in good faith with the Executive in connection making such determination, including but not limited to providing the Executive with an estimate of any parachute payments as soon as reasonably practicable prior to an event constituting a “change in the ownership or control” effective control of the Company or in the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G 280G(b)(2)(A) of the Code), whether payable . Any such reduction pursuant to this Section 13 shall be made in a manner that results in the terms of this Agreement or any other plan, arrangement or agreement greatest economic benefit for the Executive and is consistent with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning requirements of Section 280G of the Code, the Payments 409A. Any determination required under this Section 13 shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year made in which the foregoing shall be paid to Executive (based on the rate writing in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made good faith by a nationally recognized public accounting firm (the “Accounting Firm”) selected by mutual agreement of the Company and the Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm paid for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, . The Company and the balance of any Executive shall provide the accounting firm with such fees information and expenses, if any shall be borne exclusively by Executivedocuments as the accounting firm may reasonably request in order to make a determination under this Section 13.”

Code Section 280G. If (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Corporation to or for the benefit received or to be received by Executive in connection with a “change in ownership or control” of the Company Employee (within the meaning of Section 280G of the Code), whether payable or distributable pursuant to the terms of this Agreement or any other planotherwise) (such benefits, arrangement payments or agreement with the Company or an affiliate of the Company (the distributions are hereinafter referred to as “Payments”)) would, would constitute a “parachute payment” within the meaning of Section 280G of the Codeif paid, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting FirmExcise Tax”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and then, prior to the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies making of any booksPayments to Employee, recordsa calculation shall be made comparing (i) the net after-tax benefit to Employee of the Payments after payment by Employee of the Excise Tax, to (ii) the net after-tax benefit to Employee if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (i) above is less than the amount calculated under (ii) above, then the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and documents in then, to the possession extent necessary, reducing those Payments having the next highest ratio of Executive or Parachute Value to actual present value of such Payments as of the Companydate of the change of control, as the case may be, reasonably requested determined by the Accounting FirmDetermination Firm (as defined in Section 9(b) below). For purposes of this Section 9, and otherwise cooperate present value shall be determined in accordance with the Accounting Firm in connection with the preparation and issuance Section 280G(d)(4) of the determinations and calculations contemplated by Code. For purposes of this Section 12. The first $10,000 9, the “Parachute Value” of fees and expenses a Payment means the present value as of the Accounting date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for its services in connection with purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations and calculations contemplated by required to be made under this Section 12 will 9, including whether an Excise Tax would otherwise be borne exclusively by imposed, whether the CompanyPayments shall be reduced, the amount of the Reduced Amount, and the balance of any assumptions to be utilized in arriving at such fees and expensesdeterminations, if any shall be borne exclusively made by Executive.an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Corporation and Employee (the “Determination Firm”) which shall provide detailed supporting calculations both to the Corporation and Employee within 15 business days of the receipt of notice from Employee that a Payment is

Code Section 280G. If any payment or benefit received or to be received by Executive in connection with a “"change in ownership or control” " of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “"Payments”"), would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “"net after-tax benefit” " shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “"parachute payments” " within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the codeCode. The foregoing determination will be made by a nationally recognized accounting firm (the “"Accounting Firm”") selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s 's determination shall be made based upon “"substantial authority” " within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s 's best interest to waive the receipt of any or all amounts which may constitute “"excess parachute payments.” " If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 5,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If any payment or benefit received or to be received by Executive in connection with a “change in ownership or control” of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his her sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or realized by an 2006 Employee Investor pursuant to be received by Executive in connection this Agreement either alone or together with a “change in ownership other payments or control” of benefits which 2006 Employee Investor receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an “excess parachute payment” within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether such payments or benefits provided to 2006 Employee Investor shall be reduced by reducing the amount of payments or benefits payable to 2006 Employee Investor to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such reduction, 2006 Employee Investor’s net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this paragraph, “net after tax benefit” shall mean the sum of (i) the total amount received or realized by 2006 Employee Investor pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean plus (iii) the total of all other payments and the value of all or benefits which Executive 2006 Employee Investor receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a “parachute paymentspayment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to Executive realized by 2006 Employee Investor (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable Notwithstanding any other agreements or arrangements to the Companycontrary, provided, that this Section 13 sets forth the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive 2006 Employee Investors’ sole and exclusive rights with regard to the Company with and its determinations and detailed supporting calculations with respect thereto at least 15 business days prior Subsidiaries relating to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this potential tax treatment under Section 12, Executive, in his sole 280G and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, Code and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies any corresponding state law provisions of any books, records, and documents in the possession of Executive payments or the Company, as the case may be, reasonably requested benefits realized by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by an 2006 Employee Investor under this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by ExecutiveAgreement.

Code Section 280G. If any payment or benefit received or to be received by Executive in connection with a “change in ownership or control” of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the codeCode. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s 's determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s 's best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his her sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 5,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If any payment or benefit received or to be received by Executive in connection with a “"change in ownership or control” " of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”"PAYMENTS"), would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section SECTION 12, “"net after-tax benefit” " shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “"parachute payments” " within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the codeCode. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”"ACCOUNTING FIRM") selected by Executive and reasonably acceptable to the Company, providedPROVIDED, that the Accounting Firm’s 's determination shall be made based upon “"substantial authority” " within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s 's best interest to waive the receipt of any or all amounts which may constitute “"excess parachute payments.” " If the Accounting Firm determines that such reduction is required by this Section SECTION 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section SECTION 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section SECTION 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Corporation to or for the benefit received or to be received by Executive in connection with a “change in ownership or control” of the Company Employee (within the meaning of Section 280G of the Code), whether payable or distributable pursuant to the terms of this Agreement or any other planotherwise) (such benefits, arrangement payments or agreement with the Company or an affiliate of the Company (the distributions are hereinafter referred to as “Payments”)) would, would constitute a “parachute payment” within the meaning of Section 280G of the Codeif paid, the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting FirmExcise Tax”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, then, prior to the making of any Payments to Employee, a calculation shall be made comparing (i) the net after-tax benefit to Employee of the Payments after payment by Employee of the Excise Tax, to (ii) the net after-tax benefit to Employee if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (i) above is less than the amount calculated under (ii) above, then the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in Section 9(b) below). For purposes of this Section 9, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 9, the “Parachute Value” of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 9, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the Company assumptions to be utilized in arriving at such determinations, shall pay be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Corporation and Employee (the “Determination Firm”) which shall provide detailed supporting calculations both to the Corporation and Employee within 15 business days of the receipt of notice from Employee that a Payment is due to be made, or such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, earlier time as the case may be, reasonably is requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12Corporation. The first $10,000 of All fees and expenses of the Accounting Determination Firm for its services shall be borne solely by the Corporation. Any determination by the Determination Firm shall be binding upon the Corporation and Employee. As a result of the uncertainty in connection with the determinations and calculations contemplated application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 12 will 9 (“Underpayment”), consistent with the calculations required to be borne exclusively by made hereunder. The Determination Firm shall determine the Company, and amount of the balance of any such fees and expenses, if any shall be borne exclusively by Executive.Underpayment