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 Executive (including, but not by way of limitation, any accelerated vesting on stock options) constitute "parachute payments" within the meaning of Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 5 shall be (i) delivered in full, or (ii) 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 taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required 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"). 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 reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and 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. 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 severance and other benefits provided for in this Agreement or otherwise payable to Executive the Employee (including, but not by way of limitation, any accelerated vesting on stock optionsi) constitute "parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and will (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then Executivethe Employee's severance benefits under Section 5 this Agreement shall be (i) delivered payable either in full, or (ii) delivered as to such lesser extent amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Executive the Employee on an after-tax basis, of the greatest amount of severance benefitsbenefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive the Employee otherwise agree in writing, any determination required 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"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 6Section, 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 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. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6Section.

Golden Parachute Excise Tax. In If the event that the payments and benefits provided for in this Agreement or otherwise payable to Executive (including, but not by way of limitation, any accelerated vesting on stock options) constitute "“parachute payments" ” within the meaning of Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance those payments and benefits under Section 5 shall be subject to reduction to the extent necessary to assure that the payments and benefits provided Executive under this Agreement will be limited to the greater of (i) delivered in full, the amount of payments and benefits which can be provided without triggering a parachute payment under Code Section 280G or (ii) delivered the maximum dollar amount of payments and benefits which can be provided under this Agreement so as to such lesser extent which would result in no portion provide Executive with the greatest after-tax amount of such severance payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, after taking into account any excise tax the applicable federal, state Executive may incur under Code Section 4999 with respect to those payments and local income taxes benefits and any other benefits or payments to which the Excise Tax, results Executive may be entitled in the receipt by Executive on an after-tax basis, connection with any change in control or ownership of the greatest amount Company or the subsequent termination of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Codehis employment. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 6 11 shall be made in writing in good faith by the an independent registered public accounting firm serving as selected by the Company's independent public accountants immediately prior to Company from among the Change of Control largest four accounting firms in the United States (the "“Accountants"”). For purposes of making the calculations required by this Section 610, 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 shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 610.

Golden Parachute Excise Tax. In the event that If the benefits provided for in this Agreement or otherwise payable to Executive (including, but not by way of limitation, any accelerated vesting on stock options) constitute "parachute payments" within the meaning of Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 5 1 shall be (i) delivered in full, or (ii) 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 taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required 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"). 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. The Company and 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. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6Section.

Golden Parachute Excise Tax. In Other provisions of this Agreement the event contrary notwithstanding, to the extent that any of the payments and benefits provided for in under this Agreement or otherwise payable to Executive any other agreement or arrangement between the Company and Cxxxxx (includingcollectively, but not by way of limitation, any accelerated vesting on stock optionsthe “Payments”) (i) constitute "a “parachute payments" payment” within the meaning of Section 280G of the Code and will (ii) but for this Section 19(b), would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 5 the Payments shall be payable either (i) delivered in full, full or (ii) delivered as to such lesser extent amount which would result in no portion of such severance benefits Payments being subject to excise tax under Section 4999 of the Excise Tax, Code; whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes payable by Cxxxxx and the Excise Taxexcise tax imposed by Section 4999 payable by Cxxxxx, results in the Cxxxxx’x receipt by Executive on an after-tax basis, basis of the greatest amount of severance benefitseconomic benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless Cxxxxx and the Company and Executive otherwise agree in writing, any determination required under this Section 6 shall be made in writing in good faith by independent advisors selected by the accounting firm serving as the Company's independent public accountants immediately prior to the Change of Control Company (the "Accountants"“Advisors”), whose determination shall be conclusive and binding upon Cxxxxx and the Company for all purposes. For purposes of making the calculations required by this Section 619(b), the Accountants Advisors may make reasonable assumptions and approximations concerning applicable taxes and may rely on in reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and Executive Cxxxxx shall furnish to the Accountants Advisors such information and documents as the Accountants Advisors may reasonably request in order to make a determination under this SectionSection 19(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by If this Section 619(b) is applied to reduce an amount payable to Cxxxxx, and the Internal Revenue Service successfully asserts that, despite the reduction, Cxxxxx has nonetheless received payments which are in excess of the maximum amount that could have been paid to him without being subjected to any excise tax, then, unless it would be unlawful for the Company to make such a loan or similar extension of credit to Cxxxxx, Cxxxxx may repay such excess amount to the Company as though such amount constitutes a loan to Cxxxxx made at the date of payment of such excess amount, bearing interest at the prime rate of the Company’s principal lending bank.

Golden Parachute Excise Tax. In the event that the severance and ---------------------------- other benefits provided for in this Agreement or otherwise payable to Executive the Employee (including, but not by way of limitation, any accelerated vesting on stock optionsi) constitute "parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and will (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then Executivethe Employee's severance benefits under Section 5 this Agreement shall be payable either (i) delivered in full, or or (ii) delivered as to such lesser extent amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Executive the Employee on an after-tax basis, of the greatest amount of severance benefitsbenefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive the Employee otherwise agree in writing, any determination required 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"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 6Section, 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 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. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6Section.

Golden Parachute Excise Tax. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive the Employee (including, but not by way of limitation, any accelerated vesting on stock optionsi) constitute "“parachute payments" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and will (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's the Employee’s severance benefits under Section 5 this Agreement shall be payable either (i) delivered in full, or or (ii) delivered as to such lesser extent amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Executive the Employee on an after-tax basis, of the greatest amount of severance benefitsbenefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive the Employee otherwise agree in writing, any determination required 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"”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 6Section, 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 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. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6Section.

Golden Parachute Excise Tax. In the event that the benefits provided for in this Agreement or otherwise payable to Executive (including, but not by way of without limitation, any accelerated vesting of stock options or removal of repurchase restrictions on stock optionsrestricted stock) (the “Total Payments”) would constitute "“parachute payments" ” within the meaning of Section 280G of the Internal Revenue Code and will of 1986, as amended (the “Code”) and, but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive's severance benefits under Section 5 shall the Total Payments will be delivered either (i) delivered in full, or (ii) delivered as to such lesser extent which as would result in no portion of such severance the benefits and payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive of the larger amount of economic value (on an after-tax basis, including application of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section Excise Tax). All determinations regarding Sections 280G and 4999 of the CodeCode will be made in writing by the Company’s independent auditors (the “Accountants”). Unless In the Company and Executive otherwise agree event a reduction in writing, any determination benefits or payments is required under this Section 6 shall be made in writing in good faith by 5, Executive will have the accounting firm serving as the Company's independent public accountants immediately prior choice of which benefits or payments to the Change of Control (the "Accountants")reduce. 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 good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive shall will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this SectionSection 5. The Company shall bear will pay all costs that the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6.5. To the extent then applicable, the Company agrees to use its reasonable commercial efforts to solicit shareholder approval pursuant to Section 2800(b)(5) of the Code in order to preclude the application of Section 280G.

Golden Parachute Excise Tax. In the event that the benefits provided for in this Agreement or otherwise payable to Executive (including, but not by way of limitation, any accelerated vesting on stock options) constitute "parachute payments" within the meaning of Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the Code, then the Executive's severance benefits under Section 5 shall be (i) delivered in full, or (ii) 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 taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required 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"). 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 reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and 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. 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 Executive (including, but not by way of limitation, any accelerated vesting on stock options) constitute "“parachute payments" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and will but for this Section 4 would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's ’s severance benefits under Section 5 1 shall be (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Taxexcise 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 Taxexcise tax under section 4999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 6 4 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"”). For purposes of making the calculations required by this Section 64, 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 shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 64.

Golden Parachute Excise Tax. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive the Employee (including, but not by way of limitation, any accelerated vesting on stock optionsi) constitute "parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and will (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then Executivethe Employee's severance benefits under Section 5 this Agreement shall be payable either (i) delivered in full, or or (ii) delivered as to such lesser extent amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Executive the Employee on an after-tax basis, of the greatest amount of severance benefitsbenefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive the Employee otherwise agree in writing, any determination required 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"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 6Section, 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 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. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6Section.

Golden Parachute Excise Tax. In Notwithstanding anything contained in this Agreement to the contrary, in the event that the benefits provided for in this Agreement or otherwise payable to Executive together with all other payments and the value of any benefit received or to be received by Executive: (including, but not by way of limitation, any accelerated vesting on stock optionsa) constitute "parachute payments" within the meaning of Section 280G of the Code and will Code, and (b) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 5 pursuant to the terms of this Agreement shall be payable either: (i) delivered in full, or or (ii) delivered as to such lesser extent amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefitsbenefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable subject to the excise tax imposed under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 6 8 shall be made in writing in good faith by the accounting firm serving as the Company's independent public accountants serving immediately prior to before the Hostile Takeover or Change of Control (the "Accountants"), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 68, 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 shall cause the Accountants to provide detailed supporting calculations of its determinations to Executive and the Company. Executive and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 68.

Golden Parachute Excise Tax. In the event that the benefits provided ---------------------------- for in this Agreement or otherwise payable to Executive the Chairman (including, but not by way of limitation, any accelerated vesting on stock optionsi) constitute "parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and will (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then Executivethe Chairman's severance benefits under Section 5 this Agreement shall be payable either (i) delivered in full, or or (ii) delivered as to such lesser extent amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Executive the Chairman on an after-tax basis, of the greatest amount of severance benefitsbenefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive the Chairman otherwise agree in writing, any determination required 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"), whose determination shall be conclusive and binding upon the Chairman and the Company for all purposes. For purposes of making the calculations required by this Section 6Section, 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 the Chairman shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6Section.

Golden Parachute Excise Tax. In the event that the benefits provided --------------------------- for in this Agreement or otherwise payable to the Executive (including, but not by way of limitation, any accelerated vesting on stock options) constitute "parachute payments" within the meaning of Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 5 the Executive shall be receive (i) delivered in fulla payment from the Company sufficient to pay such excise tax, or and (ii) delivered as an additional payment from the Company sufficient to such lesser extent which would result in no portion of such severance benefits being subject pay the excise tax and federal and state income taxes arising from the payments made by the Company to Executive pursuant to this sentence (together, the Excise Tax"Full Gross-Up Amount"); provided, whichever however, that the total amount of the foregoing amounts, taking into account the applicable federal, state and local income taxes payment to Executive under this Section 6 shall not exceed $100,000. The determination of Executive's excise tax liability and the Excise Taxamount, results in the receipt by Executive on an after-tax basisif any, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may required to be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required 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 auditors (the "Accountants"). 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 reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the 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. 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 Other provisions of this Agreement the event contrary notwithstanding, to the extent that any of the payments and benefits provided for in under this Agreement or otherwise payable to Executive any other agreement or arrangement between the Company and Qxxxxx (includingcollectively, but not by way of limitation, any accelerated vesting on stock optionsthe “Payments”) (i) constitute "a “parachute payments" payment” within the meaning of Section 280G of the Code and will (ii) but for this Section 19(b), would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 5 the Payments shall be payable either (i) delivered in full, full or (ii) delivered as to such lesser extent amount which would result in no portion of such severance benefits Payments being subject to excise tax under Section 4999 of the Excise Tax, Code; whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes payable by Qxxxxx and the Excise Taxexcise tax imposed by Section 4999 payable by Qxxxxx, results in the Qxxxxx’x receipt by Executive on an after-tax basis, basis of the greatest amount of severance benefitseconomic benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless Qxxxxx and the Company and Executive otherwise agree in writing, any determination required under this Section 6 shall be made in writing in good faith by independent advisors selected by the accounting firm serving as the Company's independent public accountants immediately prior to the Change of Control Company (the "Accountants"“Advisors”), whose determination shall be conclusive and binding upon Qxxxxx and the Company for all purposes. For purposes of making the calculations required by this Section 619(b), the Accountants Advisors may make reasonable assumptions and approximations concerning applicable taxes and may rely on in reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and Executive Qxxxxx shall furnish to the Accountants Advisors such information and documents as the Accountants Advisors may reasonably request in order to make a determination under this SectionSection 19(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by If this Section 619(b) is applied to reduce an amount payable to Qxxxxx, and the Internal Revenue Service successfully asserts that, despite the reduction, Qxxxxx has nonetheless received payments which are in excess of the maximum amount that could have been paid to him without being subjected to any excise tax, then, unless it would be unlawful for the Company to make such a loan or similar extension of credit to Qxxxxx, Qxxxxx may repay such excess amount to the Company as though such amount constitutes a loan to Qxxxxx made at the date of payment of such excess amount, bearing interest at the prime rate of the Company’s principal lending bank.

Golden Parachute Excise Tax. In the event that the severance and --------------------------- other benefits provided for in this Agreement or otherwise payable to Executive the Employee (including, but not by way of limitation, any accelerated vesting on stock optionsi) constitute "parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and will (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then Executivethe Employee's severance benefits under Section 5 this Agreement shall be payable either (i) delivered in full, or or (ii) delivered as to such lesser extent amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Executive the Employee on an after-tax basis, of the greatest amount of severance benefitsbenefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive the Employee otherwise agree in writing, any determination required 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"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 6Section, 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 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. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6Section.

Golden Parachute Excise Tax. In the event that If the benefits provided for in this Agreement or otherwise payable to Executive (including, but not by way of limitation, any accelerated vesting on stock options) constitute "“parachute payments" ” within the meaning of Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the Code, then Executive's ’s severance benefits under Section 5 1 shall be (i) delivered in full, or (ii) 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 taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required 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"”). 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. The Company and 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. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6Section.

Golden Parachute Excise Tax. In the event that the Retention Payment or --------------------------- benefits provided for in this Agreement or otherwise payable or provided to Executive the Employee (including, but not by way of limitation, any accelerated vesting on stock optionsi) constitute "parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and will (ii) but for this Section 3, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the "Excise Tax"), then Executivethe Employee's severance benefits benefit otherwise payable under Section 5 2(a) hereof shall be either (ia) delivered in full, or , (iib) 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 Executive the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive the Employee otherwise agree in writing, any determination required under this Section 6 3 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"). In the event of a reduction in benefits hereunder, the Employee shall be given the choice of which benefits to reduce. For purposes of making the calculations required by this Section 63, 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 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. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 63, or (c) delivered pursuant to such agreement as the Company and the Employee may mutually agree.

Golden Parachute Excise Tax. In the event that If the benefits provided for in this Agreement or otherwise payable to Executive (including, but not by way of limitation, any accelerated vesting on stock options) constitute "“parachute payments" ” within the meaning of Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive's ’s severance benefits under Section 5 1 shall be (i) delivered in full, or (ii) 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 taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 6 4 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"”). For purposes of making the calculations required by this Section 64, 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 shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 64.

Golden Parachute Excise Tax. (a) In the event that the benefits provided for in this Agreement or otherwise payable provided by the Company (or any subsidiary thereof) to Executive the Employee (including, but not by way of limitation, any accelerated vesting on stock optionsequity awards) constitute "parachute payments" within (the meaning of Section 280G of “Total Payments”) would subject the Code and will be subject Employee to the an excise tax (the “Excise Tax”) imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then Executive's severance benefits under Section 5 shall be the Company (or any subsidiary thereof that employs the Employee at such time) will pay the Employee (i) delivered in fullan amount sufficient to pay the excise tax, or and (ii) delivered as an additional amount sufficient to such lesser extent which would result in no portion of such severance benefits being subject to pay the Excise Tax, whichever of the foregoing amounts, taking into account the applicable Tax and federal, state and local income and employment taxes arising from the payments made by the Company (or any subsidiary thereof that employs the Employee at such time) pursuant to this sentence. Any amount required to be paid to the Employee pursuant to the preceding sentence shall be referred to as the “Gross-Up Payment.” (b) The determination of the Employee’s Excise Tax liability and the Excise Taxamount, results in the receipt by Executive on an after-tax basisif any, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may required to be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required paid under this Section 6 shall 4 will be made in writing in good faith by independent auditors at one of the four largest United States accounting firms mutually agreed to by the accounting firm serving as Employee and the Company's independent public accountants immediately prior to the Change of Control Company (the "“Accountants"”). For purposes of making the calculations required by this Section 64, the Employee shall be deemed to pay federal, state and local income taxes at the highest marginal rate in effect in the calendar year in which the Gross-Up Payment will be made, based on the Employee’s residence. 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 (or any subsidiary thereof that employs the Employee at such time) and Executive 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 SectionSection 4. The Company shall bear will pay all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 64. (c) The Accountants shall determine the Gross-Up Payment as soon as practicable after (i) the Change of Control (but in no event later than 15 days after the Change of Control), and also after (ii) the Employee’s termination of employment (but in no event later than 15 days after the termination). In addition, the Accountants shall make a determination of any Gross-Up Payment prior to a Change of Control or the Employee’s termination of employment upon written request of the Employee and assuming the Employee has a reasonable basis for believing that he may be entitled to a Gross-Up Payment prior to the Change of Control or termination of employment. The Gross-Up Payment shall be paid to the Employee within five days after the Accountants’ determination. In the event that the initial Gross-Up Payment made to the Employee is finally determined to be too large or small, the following rules shall apply. If the initial Gross-Up Payment was too small, the Company (or any subsidiary thereof that employs the Employee at such time) shall promptly make an additional payment to the Employee equal to the shortfall (plus any interest, penalties or additional amounts payable by executive with respect to such excess). If the initial Gross-Up Payment is too large, then the Employee shall repay the amount of the excess to the Company (or any subsidiary that has made such payment to the Employee), plus interest on the amount of such repayment at 120% of the applicable federal rate provided in section 1274 of the Code, but only to the extent that such repayment by the Employee would result in a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes). The Executive and the Company (or any subsidiary thereof that employs the Employee at such time) shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of the Excise Tax with respect to the Total Payments (and associated income taxes, penalties and interest).

Golden Parachute Excise Tax. In Notwithstanding anything contained in this Agreement to the contrary, in the event that the benefits provided for in this Agreement or otherwise payable to Executive together with all other payments and the value of any benefit received or to be received by Executive: (including, but not by way of limitation, any accelerated vesting on stock optionsa) constitute "“parachute payments" ” within the meaning of Section 280G of the Code and will Code, and (b) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance ’s benefits under Section 5 pursuant to the terms of this Agreement shall be payable either: (i) delivered in full, or or (ii) delivered as to such lesser extent amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefitsbenefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable subject to the excise tax imposed under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 6 8 shall be made in writing in good faith by the accounting firm serving as the Company's ’s independent public accountants serving immediately prior to before the Hostile Takeover or Change of Control (the "“Accountants"”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 68, 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 shall cause the Accountants to provide detailed supporting calculations of its determinations to Executive and the Company. Executive and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 68.

Golden Parachute Excise Tax. In If the event that the payments and benefits provided for in this Agreement or otherwise payable to Executive (including, but not by way of limitation, any accelerated vesting on stock options) constitute "“parachute payments" ” within the meaning of Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance those payments and benefits under Section 5 shall be subject to reduction to the extent necessary to assure that the payments and benefits provided Executive under this Agreement will be limited to the greater of (i) delivered in full, the amount of payments and benefits which can be provided without triggering a parachute payment under Code Section 280G or (ii) delivered the maximum dollar amount of payments and benefits which can be provided under this Agreement so as to such lesser extent which would result in no portion provide Executive with the greatest after-tax amount of such severance payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, after taking into account any excise tax the applicable federal, state Executive may incur under Code Section 4999 with respect to those payments and local income taxes benefits and any other benefits or payments to which the Excise Tax, results Executive may be entitled in the receipt by Executive on an after-tax basis, connection with any change in control or ownership of the greatest amount Company or the subsequent termination of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Codehis employment. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 6 11 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 triggering event (the "“Accountants"”). For purposes of making the calculations required by this Section 611, 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 shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 611.

Golden Parachute Excise Tax. In the event that the benefits provided for in this Agreement or otherwise payable to Executive (including, but not by way of without limitation, any accelerated vesting of stock options or removal of repurchase restrictions on stock optionsrestricted stock) (the “Total Payments”) would constitute "“parachute payments" ” within the meaning of Section 280G of the Internal Revenue Code and will of 1986, as amended (the “Code”) and, but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive's severance benefits under Section 5 shall the Total Payments will be delivered either (i) delivered in full, or (ii) delivered as to such lesser extent which as would result in no portion of such severance the benefits and payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive of the larger amount of economic value (on an after-tax basis, including application of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section Excise Tax). All determinations regarding Sections 280G and 4999 of the CodeCode will be made in writing by the Company’s independent auditors (the “Accountants”). Unless In the Company and Executive otherwise agree event a reduction in writing, any determination benefits or payments is required under this Section 6 shall be made in writing in good faith by 5, Executive will have the accounting firm serving as the Company's independent public accountants immediately prior choice of which benefits or payments to the Change of Control (the "Accountants")reduce. 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 good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive shall will furnish to the Accountants such information and documents document as the Accountants may reasonably request in order to make a determination under this SectionSection 5. The Company shall bear will pay all costs that the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6.5. To the extent then applicable, the Company agrees to use its reasonable commercial efforts to solicit shareholder approval pursuant to Section 2800(b)(5) of the Code in order to preclude the application of Section 280G.

Golden Parachute Excise Tax. In the event that the benefits provided for in this Agreement or otherwise payable to the Executive (including, but not by way of limitation, any accelerated vesting on stock options) constitute "parachute payments" within the meaning of Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 5 the Executive shall be receive (i) delivered in fulla payment from the Company sufficient to pay such excise tax, and (ii) an additional payment from the Company sufficient to pay the excise tax and federal and state income taxes arising from the payments made by the Company to Executive pursuant to this sentence (together, the "Full Gross-Up Amount"); provided, however, that the total amount of the payment to Executive under this Section 6 shall not exceed the greater of (i) $2,500,000, or (ii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Tax, whichever one-half of the foregoing amounts, taking into account the applicable federal, state and local income taxes Full Gross-Up Amount. The determination of Executive's excise tax liability and the Excise Taxamount, results in the receipt by Executive on an after-tax basisif any, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may required to be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required 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 auditors (the "Accountants"). 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 reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the 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. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6.