Common use of Excise Tax Gross-Up Clause in Contracts

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would be subject to the excise tax imposed by Section 4999 of the Code, then the Executive’s benefits under this Agreement shall be payable either (1) in full, or (2) as to such lesser amount which would result in no portion of the such 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, results in the receipt by the Executive on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). For purposes of making the calculations required by this Subsection (e), 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e). The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection (e).

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would will be subject to the excise tax imposed by Section 4999 of the Code, then Executive will receive (i) a payment from the Executive’s benefits under this Agreement shall be payable either Company sufficient to pay such excise tax, and (1ii) in full, or (2) as an additional payment from the Company sufficient to such lesser amount which would result in no portion of pay the such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, federal and state income and local income employment taxes and additional excise taxes arising from the excise tax imposed by Section 4999, results in the receipt payments made to Executive by the Executive on an after-tax basis, of the greatest amount of benefits under Company pursuant to this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Codesentence. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) Section 9 will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). For purposes of making the calculations required by this Subsection (e)Section 9, 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e)Section 9. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection (e)Section 9.

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would be subject to the excise tax imposed by Section 4999 of the Code, then the Executive’s benefits under this Agreement shall be payable either (1) in full, or (2) as to such lesser amount which would result in no portion of the such 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, results in the receipt by the Executive on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). For purposes of making the calculations required by this Subsection (e), 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e). The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection (e).

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would be subject to the excise tax imposed by Section 4999 of the Code, then the Executive’s 's benefits under this Agreement shall be payable either (1) in full, or (2) as to such lesser amount which would result in no portion of the such 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, results in the receipt by the Executive on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s 's excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). For purposes of making the calculations required by this Subsection (e), 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e). The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection (e).

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would will be subject to the excise tax imposed by Section 4999 of the Code, then Executive will receive (i) a payment from the Executive’s benefits under this Agreement shall be payable either Company sufficient to pay such excise tax, and (1ii) in full, or (2) as an additional payment from the Company sufficient to such lesser amount which would result in no portion of pay the such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, federal and state income and local income employment taxes and additional excise taxes arising from the excise tax imposed by Section 4999, results in the receipt payments made to Executive by the Executive on an after-tax basis, of the greatest amount of benefits under Company pursuant to this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Codesentence. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) Section 8 will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). For purposes of making the calculations required by this Subsection (eSection 8(A), 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (eSection 8(A). The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection (e)Section 8. The Company will pay all amounts required by this Section 8(A) as soon as reasonably practicable, but in no event later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would will be subject to the Federal and/or State excise tax imposed by Section 4999 of the Code, then Executive will receive a payment from the Company sufficient to pay such excise tax (the “Gross-Up Payment”). For the avoidance of doubt, Executive shall not receive any additional payment from the Company for any additional income, employment, excise or other taxes imposed on Executive as a result of Executive’s benefits under this Agreement shall be payable either (1) in full, or (2) as to such lesser amount which would result in no portion receipt of the such benefits being subject to excise tax under Section 4999 of Gross-Up Payment from 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, results in the receipt by the Executive on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodeCompany. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) Section 6 will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). For purposes of making the calculations required by this Subsection (e)Section 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e)Section 6. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection Section 6. The Company will pay any Gross-Up Payment to Executive within thirty (e30) days after the receipt of the Accountants’ determination, but in no event later than the close of the calendar year following the calendar year in which Executive pays the excise taxes to the Internal Revenue Service (the “IRS”).

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would will be subject to the excise tax imposed by Section 4999 of the Code, then Executive will receive (i) a payment from the Executive’s benefits under this Agreement shall be payable either Company sufficient to pay such excise tax, and (1ii) in full, or (2) as an additional payment from the Company sufficient to such lesser amount which would result in no portion of pay the such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, federal and state income and local income employment taxes and additional excise taxes arising from the excise tax imposed by Section 4999, results in payments made to the receipt Executive by the Executive on an after-tax basis, of the greatest amount of benefits under Company pursuant to this sentence along with any interest and/or penalties that are assessed. Notwithstanding any contrary provision in this Agreement, notwithstanding that all or some portion of such benefits may under no circumstances will the Company be taxable under Section 4999 of required to pay to the CodeExecutive an amount greater than $1,000,000 pursuant to this Subsection (e). Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). For purposes of making the calculations required by this Subsection (e), 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e). The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection (e).

Excise Tax Gross-Up. In the event that the severance and other benefits provided for in this Agreement (i) or otherwise payable to Executive 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 Subsection (e), would will be subject to the excise tax imposed by Section 4999 of the Code, then Executive will receive (i) a payment from the Executive’s benefits under this Agreement shall be payable either Company sufficient to pay such excise tax, and (1ii) in full, or (2) as an additional payment from the Company sufficient to such lesser amount which would result in no portion of pay the such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, federal and state income and local income employment taxes and additional excise taxes arising from the excise tax imposed by Section 4999, results in the receipt payments made to Executive by the Executive on an afterCompany pursuant to this sentence (collectively, the “Gross-tax basisUp Payments”). Notwithstanding the foregoing, of the greatest total amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of paid as Gross-Up Payments by the CodeCompany will not exceed $600,000. Unless Executive and the Company and Employee otherwise agree otherwise in writing, the determination of ExecutiveEmployee’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) Section 6 will be made in writing in good faith by the accounting firm serving as the Company’s independent auditors who are primarily used by the Company public accountants immediately prior to the Change of in Control (the “Accountants”). For purposes of making the calculations required by this Subsection (e)Section 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 Executive and will furnish to the Company agree to furnish Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e)Section 6. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection Section 6. Any Gross-Up Payments will be paid to the Executive, or for his or her benefit, within thirty (e)30) days following receipt by the Company of the report of the Accountants setting forth its determination, but in no event later than the last day of Executive’s taxable year following the taxable year in which Executive remitted such excise tax to the taxing authority.

Excise Tax Gross-Up. In the event that the severance and other benefits provided for in this Agreement (i) or otherwise payable to Executive 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 Subsection (e), would will be subject to the excise tax imposed by Section 4999 of the Code, then Executive will receive (i) a payment from the Executive’s benefits under this Agreement shall be payable either Company sufficient to pay such excise tax, and (1ii) in full, or (2) as an additional payment from the Company sufficient to such lesser amount which would result in no portion of pay the such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, federal and state income and local income employment taxes and additional excise taxes arising from the excise tax imposed by Section 4999, results in the receipt payments made to Executive by the Executive on an afterCompany pursuant to this sentence (collectively, the “Gross-tax basisUp Payments”). Notwithstanding the foregoing, of the greatest total amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of paid as Gross-Up Payments by the CodeCompany will not exceed $300,000. Unless Executive and the Company and Employee otherwise agree otherwise in writing, the determination of ExecutiveEmployee’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) Section 6 will be made in writing in good faith by the accounting firm serving as the Company’s independent auditors who are primarily used by the Company public accountants immediately prior to the Change of in Control (the “Accountants”). For purposes of making the calculations required by this Subsection (e)Section 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 Executive and will furnish to the Company agree to furnish Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e)Section 6. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection Section 6. Any Gross-Up Payments will be paid to the Executive, or for his or her benefit, within thirty (e)30) days following receipt by the Company of the report of the Accountants setting forth its determination, but in no event later than the last day of Executive’s taxable year following the taxable year in which Executive remitted such excise tax to the taxing authority.

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would will be subject to the excise tax imposed by Section 4999 of the Code, then Executive will receive (i) a payment from the Executive’s benefits under this Agreement shall be payable either Company sufficient to pay such excise tax, and (1ii) in full, or (2) as an additional payment from the Company sufficient to such lesser amount which would result in no portion of pay the such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, federal and state income and local income employment taxes and additional excise taxes arising from the excise tax imposed by Section 4999, results in payments made to the receipt Executive by the Executive on an after-tax basis, of the greatest amount of benefits under Company pursuant to this sentence. Notwithstanding any contrary provision in this Agreement, notwithstanding that all or some portion under no circumstances will the Company be required to pay to Executive an amount greater than two times the sum of such benefits may be taxable under Executive’s Base Salary and target annual cash incentive pursuant to this Section 4999 of the Code10. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) Section 10 will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). For purposes of making the calculations required by this Subsection (e)Section 10, 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e)Section 10. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection (e)Section 10.

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would will be subject to the excise tax imposed by Section 4999 of Sege the Code, then Executive will receive (i) a payment from the Company sufficient to pay such excise tax, and (ii) an additional payment from the Company sufficient to pay the federal and state income and employment taxes and additional excise taxes arising from the payments made to Executive by the Company pursuant to this sentence. However, the Company may elect not to make payments under the preceding sentence to the extent it reasonably determines that (a) the “parachute payments” arise from the acceleration of options with exercise prices exceeding the price at which the underlying shares could be sold on the date of the Change in Control and (b) any payments under the preceding sentence would not significantly benefit the Executive’s benefits under this Agreement shall be payable either (1) in full, or (2) as to such lesser amount which would result in no portion of the such 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, results in the receipt by the Executive on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) Section 9 will be made in writing by the independent auditors who are primarily used a certified public accounting firm selected by the Company immediately prior and reasonably acceptable to the Change of Control Executive (the “Accountants”). For purposes of making the calculations required by this Subsection (e)Section 9, 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e)Section 9. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection Section 9. Any payment to Executive under this Section 9 shall be made within thirty (e)30) days following receipt by the Company of the report of the Accountants setting forth such determination.

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would will be subject to the excise tax imposed by Section 4999 of the Code, then Executive will receive (i) a payment from the Company sufficient to pay such excise tax, and (ii) an additional payment from the Company sufficient to pay the federal and state income and employment taxes and additional excise taxes arising from the payments made to Executive by the Company pursuant to this sentence. However, the Company may elect not to make payments under the preceding sentence to the extent it reasonably determines that (a) the “parachute payments” arise from the acceleration of options with exercise prices exceeding the price at which the underlying shares could be sold on the date of the Change in Control and (b) any payments under the preceding sentence would not significantly benefit the Executive’s benefits under this Agreement shall be payable either (1) in full, or (2) as to such lesser amount which would result in no portion of the such 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, results in the receipt by the Executive on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) Section 12 will be made in writing by the independent auditors who are primarily used a certified public accounting firm selected by the Company immediately prior and reasonably acceptable to the Change of Control Executive (the “Accountants”). For purposes of making the calculations required by this Subsection (e)Section 12, 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e)Section 12. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection Section 12. Any payment to Executive under this Section 12 shall be made within thirty (e)30) days following receipt by the Company of the report of the Accountants setting forth such determination, but in no event later than March 30 of the calendar year following the calendar year in which Executive’s employment is terminated.

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would will be subject to the excise tax imposed by Section 4999 of the Code, then Executive will receive (i) a payment from the Executive’s benefits under this Agreement shall be payable either Company sufficient to pay such excise tax, and (1ii) in full, or (2) as an additional payment from the Company sufficient to such lesser amount which would result in no portion of pay the such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, federal and state and local income and employment taxes and additional excise taxes arising from the excise tax imposed by Section 4999, results in the receipt payments made to Executive by the Executive Company pursuant to this sentence. However the Company may elect not to make payments under the preceding sentence to the extent it reasonably determines that (a) the "parachute payments" arise from the acceleration of options with exercise prices exceeding the price at which the underlying shares could be sold on an after-tax basis, the date of the greatest amount of benefits Change in Control and (b) any payments under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Codepreceding sentence would not significantly benefit the Executive. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s 's excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) Section 9 will be made in writing by the independent auditors who are primarily used a certified public accounting firm selected by the Company immediately prior and reasonably acceptable to the Change of Control Executive (the “"Accountants”"). For purposes of making the calculations required by this Subsection (e)Section 9, 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e)Section 9. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection (e)Section 9.

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Subsection (ed), would be subject to the excise tax imposed by Section 4999 of the Code, then the Executive’s benefits under this Agreement shall be payable either (1) in full, or (2) as to such lesser amount which would result in no portion of the such 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, results in the receipt by the Executive on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (ed) will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the Change of in Control (the “Accountants”). For purposes of making the calculations required by this Subsection (ed), 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (ed). The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection (ed).

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would will be subject to the excise tax imposed by Section 4999 of the Code, then Executive will receive (i) a payment from the Company sufficient to pay such excise tax, and (ii) an additional payment from the Company sufficient to pay the federal and state income and employment taxes and additional excise taxes arising from the payments made to Executive by the Company pursuant to this sentence. However, the Company may elect not to make payments under the preceding sentence to the extent it reasonably determines that (a) the "parachute payments" arise from the acceleration of options with exercise prices exceeding the price at which the underlying shares could be sold on the date of the Change in Control and (b) any payments under the preceding sentence would not significantly benefit the Executive’s benefits under this Agreement shall be payable either (1) in full, or (2) as to such lesser amount which would result in no portion of the such 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, results in the receipt by the Executive on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s 's excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) Section 9 will be made in writing by the independent auditors who are primarily used a certified public accounting firm selected by the Company immediately prior and reasonably acceptable to the Change of Control Executive (the “"Accountants”"). For purposes of making the calculations required by this Subsection (e)Section 9, 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e)Section 9. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection (e)Section 9.

Excise Tax Gross-Up. In the event that the benefits provided for in this Agreement (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 Subsection (e), would will be subject to the excise tax imposed by Section 4999 of the Code, then Executive will receive (i) a payment from the Executive’s benefits Company sufficient to pay such excise tax, and (ii) an additional payment from the Company sufficient to pay the federal and state income and employment taxes and additional excise taxes arising from the payments made to Executive by the Company pursuant to this sentence. However, the Company may elect not to make payments under this Agreement shall the preceding sentence to the extent it reasonably determines that (a) the “parachute payments” arise from the acceleration of options with exercise prices exceeding the price at which the underlying shares could be payable either (1) in full, or (2) as to such lesser amount which would result in no portion sold on the date of the such benefits being subject to excise tax Change in Control and (b) any payments 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, results in the receipt by the Executive on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Codepreceding sentence would not significantly benefit Executive. Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Subsection (e) Section 9 will be made in writing by the independent auditors who are primarily used a certified public accounting firm selected by the Company immediately prior and reasonably acceptable to the Change of Control Executive (the “Accountants”). For purposes of making the calculations required by this Subsection (e)Section 9, 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. Executive and the Company agree to furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Subsection (e)Section 9. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Subsection Section 9. Any payment to Executive under this Section 9 shall be made Mao within thirty (e)30) days following receipt by the Company of the report of the Accountants setting forth such determination.