Common use of Golden Parachute Excise Tax Clause in Contracts

Golden Parachute Excise Tax. In the event that the benefits provided for in this Agreement or otherwise payable to the Employee constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that are subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Employee shall receive (i) a one-time payment from the Company sufficient to pay such excise tax (the “Excise Tax Gross-Up”), and (ii) an additional one-time payment from the Company sufficient to pay the additional excise tax and federal, state and local income and employment taxes arising from the Excise Tax Gross-Up made by the Company to the Employee pursuant to this Section 6 (the “Additional Gross-Up”). Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s excise tax liability and the amount required to be paid under this Section 6 shall be made in writing in good faith by the accounting firm serving as the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date for the payment of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code for which there is a “substantial authority” tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6.

Golden Parachute Excise Tax. In the event that the benefits provided for in this Agreement or otherwise payable to the Employee constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") that are subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then the Employee shall receive (i) a one-time payment from the Company sufficient to pay such excise tax (the “"Excise Tax Gross-Up”"), and (ii) an additional one-time payment from the Company sufficient to pay the additional excise tax and federal, federal and state and local income and employment taxes arising from the Excise Tax Gross-Up made by the Company to the Employee pursuant to this Section 6 (the “"Additional Gross-Up”"); provided, however, that the Company shall only pay the Excise Tax Gross-Up and Additional Gross-Up if the cumulative value of such payments to the Employee equals or exceeds $10,000. In the event that such payments to the Employee is less than $10,000, then the Employee's benefits hereunder shall be either (x) delivered in full, or (y) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax, results in the receipt by the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s 's excise tax liability and the amount required to be paid under this Section 6 7 shall be made in writing in good faith by the accounting firm serving as the Company’s 's independent public accountants immediately prior to the Change of Control (the “"Accountants”"). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date for the payment of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 67, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code for which there is a “"substantial authority” " tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 67. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 67.

Golden Parachute Excise Tax. In Notwithstanding anything to the contrary, in the event that the benefits provided it is determined that any payment or distribution of any type to or for in your benefit (whether under this Agreement or otherwise payable to otherwise) made by the Employee constitute “parachute payments” Company, by any of its affiliates, by any person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that are Section 280G (“Section 280G”), and the regulations thereunder) or by any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are collectively referred to as the “Excise Tax”), then such payments or distributions shall be payable as to such lesser amount which would result in no portion of such payments or distributions being subject to the Employee shall receive (i) Excise Tax. If a one-time payment from reduction in the Company sufficient Total Payments constituting “parachute payments” is necessary so that no portion of such Total Payments is subject to pay such the excise tax under Section 4999 of the Code, the reduction shall occur in the following order: (1) reduction of cash payments for which the full amount is treated as a parachute payment; (2) cancellation of accelerated vesting (or, if necessary, payment) of cash awards for which the full amount is not treated as a parachute payment; (3) cancellation of any accelerated vesting of equity compensation awards; and (4) reduction of any continued employee benefits. In selecting the equity compensation awards (if any) for which vesting will be reduced under clause (3) of the preceding sentence, awards shall be selected in a manner that maximizes the after-tax aggregate amount of Total Payments provided to you; provided, that, if (and only if) necessary in order to avoid the imposition of an additional tax under Code Section 409A (“Excise Tax Gross-UpSection 409A”), and (ii) awards instead shall be selected in the reverse order of the date of grant. For the avoidance of doubt, for purposes of measuring an additional oneequity compensation award’s value to you, such award’s value shall equal the then aggregate fair market value of the vested shares underlying the award less any aggregate exercise price less applicable taxes. Also, if two or more equity compensation awards are granted on the same date, each award will be reduced on a pro-time rata basis. In no event shall you have any discretion with respect to the ordering of payment from reductions. However, notwithstanding the foregoing, if the imposition of such Excise Tax could be avoided by approval of stockholders as described in Section 280G(b)(5)(B), then you will be deemed to have requested that the Company sufficient solicit a vote of such stockholders (as described in Section 280G(b)(5)(B)) and in which case you will cooperate and execute any such waivers of compensation as may be necessary to enable the stockholder vote (if the Company in its sole discretion elects to solicit its stockholders) to comply with the requirements specified under Section 280G and the regulations promulgated thereunder. Any reduction in Total Payments required in connection with the stockholder vote shall be effected in the same manner provided in the preceding paragraph. In no event will the Company be required to gross up any payment or benefit to you to avoid the effects of the Excise Tax or to pay the additional any regular or excise tax and federal, state and local income and employment taxes arising from the application of the Excise Tax Gross-Up Tax. All mathematical determinations and all determinations of whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G) that are required to be made under this Section 5, shall be made by a nationally recognized independent audit firm selected by the Company to the Employee pursuant to this Section 6 (the “Additional Gross-Up”). Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s excise tax liability and the amount required to be paid under this Section 6 shall be made in writing in good faith by the accounting firm serving as the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if anywho shall provide their determination, shall either be (x) paid to together with detailed supporting calculations regarding the Employee no later than ten (10) days prior to the due date for the payment amount of any excise taxrelevant matters, or (y) paid both to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and to you. Such determination shall be made by the Employee agree to promptly (but in no event later than the end Accountants using reasonable good faith interpretations of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriateCode. For purposes of making the calculations required As expressly permitted by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application Q/A #32 of the Code for which there is a “substantial authority” tax reporting position. The Company and the Employee shall furnish Section 280G regulations, with respect to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6. The Company shall bear all costs the Accountants may reasonably incur performing any present value calculations that are required in connection with any calculations contemplated by this Section 65, you and the Company each affirmatively elect to utilize the Applicable Federal Rates (“AFR”) that are in effect as of the Effective Date and the Accountants shall therefore use such AFRs in their determinations and calculations. Any determination by the Accountants shall be binding upon the Company and you, absent manifest error.

Golden Parachute Excise Tax. In the event that If the benefits provided for in this Agreement or otherwise payable to the Employee Executive constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that are and will be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Employee Executive’s severance benefits under Section 2 shall receive be (i) a one-time payment from the Company sufficient to pay such excise tax (the “Excise Tax Gross-Up”)delivered in full, and or (ii) an additional one-time payment from delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Company sufficient to pay Excise Tax, whichever of the additional excise tax and foregoing amounts, taking into account the applicable federal, state and local income taxes and employment taxes arising from the Excise Tax GrossTax, results in the receipt by Executive on an after-Up made by tax basis, of the Company to the Employee pursuant to this Section 6 (the “Additional Gross-Up”)greatest amount of severance benefits. Unless the Company and the Employee Executive otherwise agree in writing, the any determination of the Employee’s excise tax liability and the amount required to be paid under this Section 6 5 shall be made in writing in good faith by the accounting firm serving as the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date for the payment of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 65, 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 for which there is a “substantial authority” tax reporting positionCode. The Company and the Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. If the Accountants determine that reduction of Executive’s severance benefits is required by this Section 65 such that no portion of Executive’s severance benefits will be subject to the Excise Tax, the severance benefits shall be reduced in the following order: (i) cash severance pay that is exempt from Section 409A, (ii) any other cash severance pay, (iii) any other cash payable that is a severance benefit other than stock appreciation rights, (iv) any stock appreciation rights, (v) any restricted stock and/or restricted stock units, and (vi) stock options. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 65.

Golden Parachute Excise Tax. In the event that the benefits provided Employer shall reimburse Employee for in this Agreement or otherwise payable to the Employee constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”a) that are subject to the any excise tax imposed by Section 4999 of the Code on any portion of the compensation or benefits payable by Employer or any of its parents, subsidiaries or other affiliates to Employee under this Agreement, all other contracts, arrangements or programs, and (the “Excise Tax”), then the Employee shall receive (ib) a one-time payment from the Company sufficient to pay any such excise tax (the “Excise Tax Gross-Up”), and (ii) an additional one-time payment from the Company sufficient to pay the additional excise tax and federal, state and local income and employment any other taxes arising from the Excise Tax Gross-Up made imposed by the Company Code or under state or local law on the payments provided for in this Section 10 (including but not limited to the afore-described payments in this sentence). Employee pursuant and Employer agree to reasonably cooperate to mitigate the amount of any such tax that might become payable. Employer shall pay to Employee the payments, or portions thereof, provided for in this Section 6 (the “Additional Gross-Up”). Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s excise tax liability and the amount required to be paid under this Section 6 shall be made in writing in good faith by the accounting firm serving as the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no 10 not later than ten fifteen (1015) days prior to the date on which such taxes, or portions thereof, are due date for as determined by the tax counsel referred to below. Tax counsel selected by Employer and reasonably acceptable to Employee shall determine the amounts (if any) due Employee under this Section 10, based on the actual tax rates to which Employee is subject at the time (or, if the actual tax rates cannot be determined at such time, based on the highest marginal tax rates of Employee). Employee shall provide such counsel with such information as such counsel reasonably requests in connection with such determination. All determinations of tax counsel shall be binding on Employee and Employer. Tax counsel shall determine that payments shall be due hereunder only if, and to the extent that, it is more likely than not that the payments or benefits are subject to a tax. In making the determinations required by this Section 10, tax counsel may rely on benefit consultants, accountants or other experts. Employer agrees to pay all reasonable fees and expenses of such tax counsel, benefits consultants, accountants or other experts. If, subsequent to the payment to Employee of any excise taxpayments pursuant to this Section 10, the tax counsel referred to in this Section 10 reasonably determines that the amount of the payments paid pursuant to this Section 10 are greater than, or (y) paid less than, the amount required to the Internal Revenue Service on behalf of the have been paid, Employee no later than the due date for the payment of any excise taxshall reimburse Employer an amount, or Employer shall pay to Employee an additional amount, respectively, based upon such determination. In the event that tax counsel referred to in this Section 10 reasonably determines that Employee is required to pay excise tax, interest or penalties to a governmental taxing authority as a result of his non-payment of taxes where such tax counsel had determined that such taxes need not be paid or as a result of a miscalculation of such taxes, Employer shall pay to Employee an additional amount equal to (i) the Excise Tax incurred amount of such interest and/or penalties, (ii) the excise tax which was not paid and (iii) any excise tax and any other taxes imposed by the Employee is determined by Code or under state or local law on the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but payments provided for in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code for which there is a “substantial authority” tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6sentence.

Golden Parachute Excise Tax. In the event that the benefits provided for in this Agreement or otherwise payable to the Employee constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") that are subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then the Employee shall receive (i) a one-time payment from the Company sufficient to pay such excise tax (the “"Excise Tax Gross-Up”"), and (ii) an additional one-time payment from the Company sufficient to pay the additional excise tax and federal, federal and state and local income and employment taxes arising from the Excise Tax Gross-Up made by the Company to the Employee pursuant to this Section 6 (the “"Additional Gross-Up”"); provided, however, that the Company shall only pay the Excise Tax Gross-Up and Additional Gross-Up if the cumulative value of such payments to the Employee equals or exceeds $10,000. In the event that such payments to the Employee is less than $10,000, then the Employee's benefits hereunder shall be either (x) delivered in full, or (y) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax, results in the receipt by the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s 's excise tax liability and the amount required to be paid under this Section 6 shall be made in writing in good faith by the accounting firm serving as the Company’s 's independent public accountants immediately prior to the Change of Control (the “"Accountants”"). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date for the payment of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code for which there is a “"substantial authority” " tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6."

Golden Parachute Excise Tax. In the event that the benefits provided for in this Agreement or otherwise payable to the Employee constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") that are subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then the Employee shall receive (i) a one-time payment from the Company sufficient to pay such excise tax (the “"Excise Tax Gross-Up”"), and (ii) an additional one-time payment from the Company sufficient to pay the additional excise tax and federal, federal and state and local income and employment taxes arising from the Excise Tax Gross-Up made by the Company to the Employee pursuant to this Section 6 (the “"Additional Gross-Up”"); provided, however, that the Company shall only pay the Excise Tax Gross-Up and Additional Gross-Up if the cumulative value of such payments to the Employee equals or exceeds $10,000. In the event that such payments to the Employee is less than $10,000, then the Employee's benefits hereunder shall be either (x) delivered in full, or (y) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax, results in the receipt by the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s 's excise tax liability and the amount required to be paid under this Section 6 shall be made in writing in good faith by the accounting firm serving as the Company’s 's independent public accountants immediately prior to the Change of Control (the “"Accountants”"). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date for the payment of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code for which there is a “"substantial authority” " tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6.

Golden Parachute Excise Tax. In the event that the benefits provided for in this Agreement or otherwise payable to the Employee constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that are subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Employee shall receive (i) a one-time payment from the Company sufficient to pay such excise tax (the “Excise Tax Gross-Up”), and (ii) an additional one-time payment from the Company sufficient to pay the additional excise tax and federal, federal and state and local income and employment taxes arising from the Excise Tax Gross-Up made by the Company to the Employee pursuant to this Section 6 (the “Additional Gross-Up”); provided, however, that the Company shall only pay the Excise Tax Gross-Up and Additional Gross-Up if the cumulative value of such payments to the Employee equals or exceeds $10,000. In the event that such payments to the Employee is less than $10,000, then the Employee’s benefits hereunder shall be either (x) delivered in full, or (y) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax, results in the receipt by the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s excise tax liability and the amount required to be paid under this Section 6 shall be made in writing in good faith by the accounting firm serving as the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date for the payment of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code for which there is a “substantial authority” tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6.

Golden Parachute Excise Tax. In the event that any payment or benefit received by the benefits provided for in Employee pursuant to this Agreement or otherwise payable to the Employee (a “Payment”) would constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986and, as amended (the “Code”) that are but for this sentence, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Employee shall receive have the option of having such Payment be equal to a reduced amount. Such reduced amount shall be calculated as either (i) a one-time payment from the Company sufficient largest portion of the Payment that would result in no portion of the Payment being subject to pay such excise tax (the “Excise Tax Gross-Up”), and or (ii) an additional one-time payment from the Company sufficient largest portion, up to pay and including the additional excise tax and total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes and employment taxes arising from the Excise Tax Gross-Up made by (all computed at the Company to the Employee pursuant to this Section 6 (the “Additional Gross-Up”highest applicable marginal rate). Unless the Company and the Employee otherwise agree , results in writing, the determination of the Employee’s excise receipt, on an after-tax liability and basis, of the greater amount required to of the Payment, notwithstanding that all or some portion of the Payment may be paid under this Section 6 shall be made in writing in good faith by the accounting firm serving as the Company’s independent public accountants immediately prior subject to the Change Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the reduced amount, the reduction shall occur in the following order: a reduction of Control (the “Accountants”)cash payments; cancellation of accelerated vesting of stock awards, if applicable; and reduction of employee benefits. The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunderEmployee’s election to take a reduced amount, if any, shall either be (x) paid to the Employee no later than ten (10) days irrevocable and shall be made prior to the due date for the time such payment of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise taxwould otherwise be due. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, If the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by determines that this Section 610 may apply, it shall engage an independent accounting firm to perform the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code for which there is a “substantial authority” tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6foregoing calculations. The Company shall bear all costs expenses with respect to the Accountants may reasonably incur determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Employee and the Company, at least five days in connection with any calculations contemplated advance of the date on which the Employee’s right to a Payment is triggered (if requested at that time by this Section 6the Employee or the Company) or at such other time as requested. Any good-faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Employee and the Company.

Golden Parachute Excise Tax. (a) In the event that the benefits provided for in this Agreement or otherwise payable with respect to the Employee a Change of Control occurring on or before February 10, 2019, constitute “parachute payments” within the meaning of under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that are subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Employee shall receive (i) a one-time payment from the Company XOMA sufficient to pay such excise tax Excise Tax (the “Excise Tax Gross-Up”), and (ii) an additional one-time payment from the Company XOMA sufficient to pay the additional excise tax and federal, state and local income and employment taxes arising from the Excise Tax Gross-Up made by the Company to the Employee pursuant to under this Section 6 5 (the “Additional Gross-Up”). Unless the Company and the Employee Parties otherwise agree in writing, the determination of the Employee’s excise tax Excise Tax liability and the amount required to be paid under this Section 6 5(a) shall be made in writing in good faith by the accounting firm serving as the CompanyXOMA’s independent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date for the payment of any excise tax, or (y) paid to the Internal Revenue Service (“IRS”) on behalf of the Employee no later than the due date for the payment of any excise taxExcise Tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service IRS to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee Parties agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue ServiceIRS) make such additional payment, including interest and any tax penalties, to the other party Party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code for which there is a “substantial authority” tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6.

Golden Parachute Excise Tax. In the event that If the benefits provided for in this Agreement or otherwise payable to the Employee Executive constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that are and will be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Employee Executive’s severance benefits under Section 2 shall receive be (i) a one-time payment from the Company sufficient to pay such excise tax (the “Excise Tax Gross-Up”)delivered in full, and or (ii) an additional one-time payment from delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Company sufficient to pay Excise Tax, whichever of the additional excise tax and foregoing amounts, taking into account the applicable federal, state and local income taxes and employment taxes arising from the Excise Tax GrossTax, results in the receipt by Executive on an after-Up made by tax basis, of the Company to the Employee pursuant to this Section 6 (the “Additional Gross-Up”)greatest amount of severance benefits. Unless the Company and the Employee Executive otherwise agree in writing, the any determination of the Employee’s excise tax liability and the amount required to be paid under this Section 6 5 shall be made in writing in good faith by the accounting firm serving as the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date for the payment of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 65, 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 for which there is a “substantial authority” tax reporting positionCode. The Company and the Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. If the Accountants determine that reduction of Executive’s severance benefits is required by this Section 65 such that no portion of Executive’s severance benefits will be subject to the Excise Tax, the severance benefits shall be reduced in the following order: (i) cash severance pay that is exempt from Section 409A, (ii) any other cash severance pay, (iii) any other cash payable that is a severance benefit other than stock appreciation rights, (iv) any stock appreciation rights, (v) any restricted stock, and (vi) stock options. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 65.

Golden Parachute Excise Tax. In the event it shall be determined that any payment or distribution by the benefits provided Company or other amount with respect to the Company to or for in the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise payable otherwise, but determined without regard to any additional payments required under this Section 7 (a "Payment"), is (or will be) subject to the Employee constitute “parachute payments” within the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”") that or any interest or penalties are subject (or will be) incurred by Executive with respect to the excise tax imposed by Section 4999 of the Code with respect to the Company (the “excise tax, together with any interest and penalties, are hereinafter collectively referred to as the "Excise Tax”"), then the Employee Executive shall be entitled to receive an additional cash payment (ia "Gross-Up Payment") a one-time payment from the Company sufficient in an amount equal to pay such excise tax (the “sum of the Excise Tax Gross-Up”), and (ii) an additional one-time payment from the Company amount sufficient to pay the additional excise tax cumulative Excise Tax and federal, state all cumulative income taxes (including any interest and local penalties imposed with respect to such taxes) relating to the Gross-Up Payment so that the net amount retained by Executive is equal to all payments to which Employee is entitled pursuant to the terms of this Agreement (excluding the Gross-Up Payment) or otherwise less income and employment taxes arising from (but not reduced by the Excise Tax or by income taxes attributable to the Gross-Up Payment). Subject to the provisions of Section 7(C), all determinations required to be made under this Section 7, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at the determination, shall be made by a nationally recognized certified public accounting firm selected by the Company with the consent of Executive, which should not unreasonably be withheld (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and Executive within 30 days after the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Company, as determined in accordance with this Section 7, shall pay any Gross-Up Payment to Executive within five days after the receipt of the Accounting Firm's determination or, if later, on the date when the Excise Tax payment is due. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments that the Company should have made will not have been made (an "Underpayment") or that payments in excess of the amount that should have been made (an "Overpayment") were made, consistent with the calculations required to be made hereunder. In the event the Company exhausts its remedies in accordance with Section 7(C) and Executive thereafter is required to make a payment of any Excise Tax or if a smaller amount of Excise Tax is owed, the Accounting Firm shall determine the amount of Underpayment or Overpayment that has occurred and the Underpayment shall be promptly paid by the Company to or for the Employee benefit of Executive or the Overpayment shall be promptly paid by Executive to the Company. Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require a Gross-Up Payment (that has not already been paid by the Company). The notification shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of the claim and shall apprise the Company of the nature of the claim and the date on which the claim is requested to be paid. Executive shall not pay the claim prior to the expiration of the 30- day period following the date on which Executive gives notice to the Company or any shorter period ending on the date that any payment of taxes with respect to the claim is due. If the Company notifies Executive in writing prior to the expiration of the 30- day period that it desires to contest the claim, Executive shall: give the Company any information reasonably requested by the Company relating to the claim; take any action in connection with contesting the claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to the claim by an attorney reasonably selected by the Company; cooperate with the Company in good faith in order effectively to contest the claim; and permit the Company to participate in any proceedings relating to the claim. The Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with the contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of the representation and payment of costs and expenses. Without limitation of the forgoing provisions of this Section 7, the Company shall control all proceedings taken in connection with the contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of the claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute the contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine. If the Company directs Executive to pay the claim and xxx for a refund, the Company shall advance the amount of the payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to the advance or with respect to any imputed income with respect to the advance; and any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which the contested amount is claimed to be due shall be limited solely to the contested amount. The Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 6 7(D), Executive becomes entitled to receive any refund with respect to the claim, Executive shall, subject to the Company's compliance with the requirements of this Section 7(D), promptly pay to the Company the amount of the refund (the “Additional Gross-Up”together with any interest paid or credited thereon after taxes applicable thereto). Unless If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 7(D), a determination is made that Executive shall not be entitled to any refund with respect to the claim and the Employee otherwise agree Company does not notify Executive in writingwriting of its intent to contest the denial of refund prior to the expiration of 30 days after the determination, then the determination of the Employee’s excise tax liability advance shall be forgiven and shall not be required to be repaid and the amount of the advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid under this Section 6 paid. Notwithstanding the above, Executive and not the Company shall be made in writing in good faith by the accounting firm serving as the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date liable for the payment of any excise tax, interest or (y) paid penalty that is due because of Executive's failure to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, notify the Company and or cooperate with the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party Company as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code for which there is a “substantial authority” tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 67.

Golden Parachute Excise Tax. In the event that the benefits provided The Company shall reimburse Executive for in this Agreement or otherwise payable to the Employee constitute “parachute payments” within the meaning of (i) any excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) that are subject to the excise tax imposed by Section 4999 on any portion of the Code (the “Excise Tax”), then the Employee shall receive (i) a one-time payment from compensation or benefits payable by the Company sufficient or its Affiliates to pay such excise tax (the “Excise Tax Gross-Up”)Executive under this Agreement, all other contracts, arrangements or programs, and (ii) an additional one-time payment from the Company sufficient to pay the additional any such excise tax and federal, state and local income and employment any other taxes arising from the Excise Tax Gross-Up made imposed by the Code or under state or local law on the payments provided for in this Section 6. Executive and the Company agree to reasonably cooperate to mitigate the Employee pursuant amount of any such tax that might become payable. The Company shall pay to Executive the payments, or portions thereof, provided for in this Section 6 (the “Additional Gross-Up”). Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s excise tax liability and the amount required to be paid under this Section 6 shall be made in writing in good faith by the accounting firm serving as the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no not later than ten fifteen (1015) days prior to the due date for the payment of any excise taxon which such taxes, or portions thereof, are due as determined by the tax counsel referred to below. Tax counsel selected by the Company and reasonably acceptable to Executive shall determine the amounts (yif any) paid due Executive under this Section 6, based on the actual tax rates to which Executive is subject at the time. Executive shall provide such counsel with such information as such counsel reasonably requests in connection with such determination. All determinations of tax counsel shall be binding on Executive and the Company. Tax counsel shall determine that payments shall be due hereunder only if, and to the Internal Revenue Service on behalf of extent that, it is more likely than not that the Employee no later than the due date for the payment of any excise payments or benefits are subject to a tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations determinations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and tax counsel may rely on interpretations concerning the application of the Code for which there is a “substantial authority” tax reporting positionbenefit consultants, accountants or other experts. The Company agrees to pay all reasonable fees and the Employee shall furnish expenses of such tax counsel, benefits consultants, accountants or other experts. If, subsequent to the Accountants such information and documents as the Accountants may reasonably request in order payment to make a determination under Executive of payments pursuant to this Section 6. The , the tax counsel referred to in this Section 6 reasonably determines that the amount of the payments paid pursuant to this Section 6 are greater than, or less than, the amount required to have been paid, Executive shall reimburse the Company an amount, or the Company shall bear all costs pay to Executive an additional amount, respectively, based upon such determination. In the Accountants may reasonably incur event that tax counsel referred to in connection with any calculations contemplated by this Section 66 reasonably determines that Executive is required to pay excise tax, interest or penalties to a governmental taxing authority as a result of his non-payment of taxes where such tax counsel had determined that such taxes need not be paid or as a result of a miscalculation of such taxes, the Company shall pay to Executive an additional amount equal to (A) the amount of such interest and/or penalties, (B) the excise tax which was not paid and (C) any excise tax and any other taxes imposed by the Code or under state or local law on the payments provided for in this sentence.

Golden Parachute Excise Tax. In the event that the benefits provided for in this Agreement or otherwise payable to the Employee constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that are subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Employee shall receive (i) a one-time payment from the Company sufficient to pay such excise tax (the “Excise Tax Gross-Up”), and (ii) an additional one-time payment from the Company sufficient to pay the additional excise tax and federal, federal and state and local income and employment taxes arising from the Excise Tax Gross-Up made by the Company to the Employee pursuant to this Section 6 (the “Additional Gross-Up”); provided, however, that the Company shall only pay the Excise Tax Gross-Up and Additional Gross-Up if the cumulative value of such payments to the Employee equals or exceeds $10,000. In the event that such payments to the Employee is less than $10,000, then the Employee’s benefits hereunder shall be either (x) delivered in full, or (y) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax, results in the receipt by the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s excise tax liability and the amount required to be paid under this Section 6 5 shall be made in writing in good faith by the accounting firm serving as the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date for the payment of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 65, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code for which there is a “substantial authority” tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 65. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 65.

Golden Parachute Excise Tax. In the event that the (a) If a Change in Control occurs, and if any payments or benefits provided for in to the Executive by the Company under this Agreement, any Incentive and Retention Agreement or otherwise payable to the Employee (including, without limitation, accelerated vesting of any equity-based or other incentive awards) constitute parachute payments (“parachute payments” Parachute Payments”) within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that are and will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (collectively, the “Excise Tax”), then the Employee Company shall receive (i) a one-pay to the Executive, no later than 15 days prior to the time payment from the Company sufficient to pay such excise tax (the “Excise Tax Gross-Up”), and (ii) an additional one-time payment from the Company sufficient to pay the additional excise tax and federal, state and local income and employment taxes arising from the Excise Tax Gross-Up made by the Company to the Employee pursuant to this Section 6 (the “Additional Gross-Up”). Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s excise tax liability and the amount or any portion thereof) is required to be paid under this Section 6 shall be made in writing in good faith by the accounting firm serving as Executive or withheld by the Company’s independent public accountants immediately prior to the Change of Control , an additional amount (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (xup Payment”) paid equal to the Employee no later than ten (10) days prior to the due date for the payment sum of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred payable by the Employee is determined by the Internal Revenue Service to be greater or lesser than Executive, plus the amount so determined by necessary to put the AccountantsExecutive in the same after-tax position (taking into account any and all applicable federal, state, local and other income, employment and excise taxes (including the Company Excise Tax and any income, employment and excise taxes imposed on the Employee agree to promptly (but in no event later than the end of the calendar year Gross-up Payment)) in which the applicable taxes are paid to (or received from) Executive would have been if the Internal Revenue Service) make such additional payment, including interest and Executive had not incurred any excise tax penalties, to liability under Section 4999 of the other party as the Accountants reasonably determine is appropriateCode. For purposes of making calculating the calculations required by Gross-Up Payment, the Executive shall be deemed to pay income taxes at the highest applicable marginal rates for the calendar year with respect to which the Gross-Up Payment is to be made. For the avoidance of doubt, the provisions of this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application 4 of the Code for which there Agreement shall apply with respect to all payments and benefits, whether or not the Executive is a “substantial authority” tax reporting position. The Company or becomes entitled to receive severance payments and benefits under Section 2 of the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6Agreement.

Golden Parachute Excise Tax. In the event that If the benefits provided for in this Agreement or otherwise payable to the Employee Executive constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that are and will be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then the Employee Executive's severance benefits under Section 2 shall receive be (i) a one-time payment from the Company sufficient to pay such excise tax (the “Excise Tax Gross-Up”)delivered in full, and or (ii) an additional one-time payment from delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Company sufficient to pay Excise Tax, whichever of the additional excise tax and foregoing amounts, taking into account the applicable federal, state and local income taxes and employment taxes arising from the Excise Tax GrossTax, results in the receipt by Executive on an after-Up made by tax basis, of the Company to the Employee pursuant to this Section 6 (the “Additional Gross-Up”)greatest amount of severance benefits. Unless the Company and the Employee Executive 4 otherwise agree in writing, the any determination of the Employee’s excise tax liability and the amount required to be paid under this Section 6 5 shall be made in writing in good faith by the accounting firm serving as the Company’s 's independent public accountants immediately prior to the Change of Control (the “"Accountants”"). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date for the payment of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 65, 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 for which there is a “substantial authority” tax reporting positionCode. The Company and the Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. If the Accountants determine that reduction of Executive's severance benefits is required by this Section 65 such that no portion of Executive's severance benefits will be subject to the Excise Tax, the severance benefits shall be reduced in the following order: (i) cash severance pay that is exempt from Section 409A, (ii) any other cash severance pay, (iii) any other cash payable that is a severance benefit other than stock appreciation rights, (iv) any stock appreciation rights, (v) any restricted stock, and (vi) stock options. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 65.

Golden Parachute Excise Tax. In the event that the benefits provided for in this Agreement or otherwise payable to the Employee constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that are subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Employee shall receive (i) a one-time payment from the Company sufficient to pay such excise tax (the “Excise Tax Gross-Up”), and (ii) an additional one-time payment from the Company sufficient to pay the additional excise tax and federal, state and local income and employment taxes arising from the Excise Tax Gross-Up made by the Company to the Employee pursuant to this Section 6 (the “Additional Gross-Up”). Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s excise tax liability and the amount required to be paid under this Section 6 shall be made in writing in good faith by the accounting firm serving as the Company’s independent inde- pendent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no later than ten (10) days prior to the due date for the payment of any excise tax, or (y) paid to the Internal Revenue Service on behalf of the Employee no later than the due date for the payment of any excise tax. In the event that the Excise Tax incurred by the Employee is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and the Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid to (or received from) the Internal Revenue Service) make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code for which there is a “substantial authority” tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6.

Golden Parachute Excise Tax. In the event that the benefits provided The Company shall reimburse Employee for in this Agreement or otherwise payable to the Employee constitute “parachute payments” within the meaning of (i) any excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) that are subject to the excise tax imposed by Section 4999 on any portion of the Code (the “Excise Tax”), then the Employee shall receive (i) a one-time payment from compensation or benefits payable by the Company sufficient or its Affiliates to pay such excise tax (the “Excise Tax Gross-Up”)Employee under this Agreement, all other contracts, arrangements or programs, and (ii) an additional one-time payment from the Company sufficient to pay the additional any such excise tax and federal, state and local income and employment any other taxes arising from the Excise Tax Gross-Up made imposed by the Company to Code or under state or local law on the Employee pursuant to payments provided for in this Section 6 (the “Additional Gross-Up”)7. Unless Employee and the Company and the Employee otherwise agree in writing, the determination of the Employee’s excise tax liability and to reasonably cooperate to mitigate the amount required of any such tax that might become payable. The Company shall pay to be paid under employee the payments, or portions thereof, provided for in this Section 6 shall be made in writing in good faith by the accounting firm serving as the Company’s independent public accountants immediately prior to the Change of Control (the “Accountants”). The initial Excise Tax Gross-Up and Additional Gross-Up payments hereunder, if any, shall either be (x) paid to the Employee no 7 not later than ten fifteen (1015) days prior to the date on which such taxes, or portions thereof, are due date for as determined by the tax counsel referred to below. Tax counsel selected by the Company and reasonably acceptable to Employee shall determine the amounts (if any) due Employee under this Section 7, based on the actual tax rates to which Employee is subject at the time. Employee shall provide such counsel with such information as such counsel reasonably requests in connection with such determination. All determinations of tax counsel shall be binding on Employee and the Company. Tax counsel shall determine that payments shall be due hereunder only if, and to the extent that, it is more likely than not that the payments or benefits are subject to a tax. In making the determinations required by this Section 7, tax counsel may rely on benefit consultants, accountants or other experts. The Company agrees to pay all reasonable fees and expenses of such tax counsel, benefits consultants, accountants or other experts. If, subsequent to the payment to Employee of any excise taxpayments pursuant to this Section 7, the tax counsel referred to in this Section 7 reasonably determines that the amount of the payments paid pursuant to this Section 7 are greater than, or (y) paid less than, the amount required to have been paid, Employee shall reimburse the Internal Revenue Service on behalf of Company an amount, or the Company shall pay to Employee no later than the due date for the payment of any excise taxan additional amount, respectively, based upon such determination. In the event that the Excise Tax incurred by the tax counsel referred to in this Section 7 reasonably determines that Employee is required to pay excise tax, interest or penalties to a governmental taxing authority as a result of his non-payment of taxes where such tax counsel had determined by the Internal Revenue Service to that such taxes need not be greater paid or lesser than the amount so determined by the Accountantsas a result of a miscalculation of such taxes, the Company and the shall pay to Employee agree to promptly (but in no event later than the end of the calendar year in which the applicable taxes are paid an additional amount equal to (or received fromA) the Internal Revenue Serviceamount of such interest and/or penalties, (B) make such additional payment, including interest the excise tax which was not paid and (C) any excise tax and any tax penalties, to the other party as the Accountants reasonably determine is appropriate. For purposes of making the calculations required taxes imposed by this Section 6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations concerning the application of the Code or under state or local law on the payments provided for which there is a “substantial authority” tax reporting position. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6sentence.