Common use of Section 280G Cutback Clause in Contracts

Section 280G Cutback. Notwithstanding anything in this Agreement to the contrary, if any payments or benefits (including without limitation, any accelerated vesting of equity awards) Executive would receive pursuant to this Agreement or otherwise would constitute a “parachute payment” within the meaning of Section 280G of the Code (each, a “Payment” and collectively, the “Payments”), the Payments shall be reduced by the minimum possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” All determinations required to be made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm designated by the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company and you. Any determination by the Accounting Firm shall be binding upon you and the Company. If a reduction in any Payments is required under this Section 6, the reduction will occur in the following order: first, by reduction of cash payments; second, by cancellation of accelerated vesting of equity awards; and third, by reduction of other benefits payable to Executive, in each case, in reverse chronological order, beginning with payments or benefits that are to be paid latest. If, at the time of a transaction giving rise to Payments that could constitute “parachute payments,” the stock of the Company is not readily tradable on an established securities market or otherwise and the Company determines that the exemption described in Section 280G(b)(5) of the Code would apply to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Code, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such that no Payments would constitute “excess parachute payments.”

Section 280G Cutback. Notwithstanding anything Anything in this Agreement to the contrarycontrary notwithstanding, if in the event it shall be determined that any payments payment or benefits (including without limitationdistribution by the Company or its successor to or for the benefit of Executive, any accelerated vesting of equity awards) Executive would receive whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “Excise Tax”), then if the aggregate of all Payments that would be subject to the Excise Tax, reduced by all Federal, state and local taxes applicable thereto, including the Excise Tax is less than the amount Executive would receive, after all such applicable taxes, if Executive received Payments equal to an amount which is $1.00 less than three times the Executive's “base amount”, as defined in and determined under Section 280G of the Code, then, such Payments shall be reduced or eliminated to the extent necessary so that the aggregate Payments received by Executive will not be subject to the Excise Tax. If a reduction in the Payments is necessary, reduction shall occur in the following order: first, a reduction of cash payments not attributable to equity awards which vest in an accelerated basis; second, a reduction in any other cash amount payable to Executive; third, the reduction of any employee benefit valued as a “parachute payment” within the meaning of (as defined in Section 280G of the Code (each, a “Payment” Code); and collectivelyfourth, the “Payments”)cancellation of accelerated vesting of stock awards. If acceleration of vesting of stock award compensation is to be reduced, the Payments such acceleration of vesting shall be reduced by cancelled in the minimum possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” reverse order of the date of grant of Executive's stock awards. All determinations required to be made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required 3.3 and the assumptions to be utilized in arriving at such determination, determinations shall be made by a nationally recognized registered public accounting firm designated by Executive and reasonably acceptable to the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company All fees and you. Any determination by expenses of the Accounting Firm shall be binding upon you and the Company. If a reduction in any Payments is required under this Section 6, the reduction will occur in the following order: first, borne solely by reduction of cash payments; second, by cancellation of accelerated vesting of equity awards; and third, by reduction of other benefits payable to Executive, in each case, in reverse chronological order, beginning with payments or benefits that are to be paid latest. If, at the time of a transaction giving rise to Payments that could constitute “parachute payments,” the stock of the Company is not readily tradable on an established securities market or otherwise and the Company determines that the exemption described in Section 280G(b)(5) of the Code would apply to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Code, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such that no Payments would constitute “excess parachute paymentsits successor.”

Section 280G Cutback. Notwithstanding anything Anything in this Agreement to the contrarycontrary notwithstanding, if in the event it shall be determined that any payments payment or benefits (including without limitationdistribution by the Company or its successor to or for the benefit of Executive, any accelerated vesting of equity awards) Executive would receive whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “Excise Tax”), then if the aggregate of all Payments that would be subject to the Excise Tax, reduced by all Federal, state and local taxes applicable thereto, including the Excise Tax is less than the amount Executive would receive, after all such applicable taxes, if Executive received Payments equal to an amount which is $1.00 less than three times the Executive's “base amount”, as defined in and determined under Section 280G of the Code, then, such Payments shall be reduced or eliminated to the extent necessary so that the aggregate Payments received by Executive will not be subject to the Excise Tax. If a reduction in the Payments is necessary, reduction shall occur in the following order: first, a reduction of cash payments not attributable to equity awards which vest in an accelerated basis; second, a reduction in any other cash amount payable to Executive; third, the reduction of any employee benefit valued as a “parachute payment” within the meaning of (as defined in Section 280G of the Code (each, a “Payment” Code); and collectivelyfourth, the “Payments”)cancellation of accelerated vesting of stock awards. If acceleration of vesting of stock award compensation is to be reduced, the Payments such acceleration of vesting shall be reduced by cancelled in the minimum possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” reverse order of the date of grant of Executive's stock awards. All determinations required to be made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required 3.3 and the assumptions to be utilized in arriving at such determination, determinations shall be made by a nationally recognized registered public accounting firm designated by Executive and reasonably acceptable to the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company All fees and you. Any determination by expenses of the Accounting Firm shall be binding upon you and borne solely by the CompanyCompany or its successor. If 4. Miscellaneous 4.1 Statements about the Company or Executive. Except as may be required to comply with a reduction in any Payments is required under this Section 6, the reduction will occur in the following order: first, by reduction of cash payments; second, by cancellation of accelerated vesting of equity awards; and third, by reduction of other benefits payable to Executive, in each case, in reverse chronological court order, beginning with payments lawful subpoena or benefits that are to be paid latest. Ifgovernmental request for information, at the time of a transaction giving rise to Payments that could constitute “parachute payments,” the stock of the Company is not readily tradable on an established securities market or otherwise Executive and the Company determines shall refrain, both during and after Executive’s employment, from publishing any oral or written statements about the other that the exemption described in Section 280G(b)(5) of the Code would apply to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Codeare disparaging, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such slanderous, libelous, or defamatory, or that no Payments would constitute “excess parachute paymentsdisclose private or confidential information about their business affairs.”

Section 280G Cutback. Notwithstanding anything (a) Anything in this Agreement to the contrary, if any payments or benefits (including without limitationcontrary notwithstanding, any accelerated vesting of equity awards) Executive would receive Payments made pursuant to this Agreement or otherwise would constitute a shall be adjusted so that the aggregate present value of all “parachute paymentpayments” (as defined in Section 280G(b)(2) of the Code) to which you are entitled is less than 300% of your “annualized includible compensation for the base period” (as defined in Section 280G(d) of the Code). The determination as to whether there is any adjustment (and the extent thereof) in any Payments made pursuant to this Agreement due to this paragraph shall be made in writing within five (5) days prior to the meaning receipt by you of a payment pursuant to, and in accordance with, Section 2 (the “Calculation Deadline”); provided, that such determination shall be made by the Company’s nationally recognized independent accountants, compensation consultants or legal counsel (“Independent Advisor”) and shall be final and binding on you and the Company. The Company shall furnish said Independent Advisor with all data required to make said determination within thirty (30) days prior to the Calculation Deadline. Notwithstanding the foregoing, the parties hereto agree that the Independent Advisor shall determine the “base amount” (as defined in Section 280G(b)(3) of the Code) applicable to the Payments as soon as practicable following January 31, 2010; provided, that (i) you and Chattem shall furnish to the Independent Advisor such information and documentation as may reasonably be requested by the Independent Advisor and (ii) a copy of such determination shall be provided to you and you shall have a reasonable opportunity to reasonably review and comment on such determination. (b) As a result of the uncertainty in the application of Section 280G of the Code (each, a “Payment” and collectively, at the “Payments”), the Payments shall be reduced time of any determination by the minimum Independent Advisor hereunder, it is possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” All determinations required to be Payments have been made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm designated by the Company which should not have been made (an “Overpayment”) or that an amount of the Payments which will not have been made by the Company could have been made (an “Accounting FirmUnderpayment”). The Accounting Firm shall provide detailed supporting calculations both to the Company and you. Any determination by the Accounting Firm shall be binding upon you and the Company. If a reduction in any Payments is required under this Section 6, the reduction will occur in the following order: first, by reduction of cash payments; second, by cancellation of accelerated vesting of equity awards; and third, by reduction of other benefits payable to Executive, in each case, in reverse chronological order, beginning consistent with payments or benefits that are the calculations required to be made hereunder. In the event that the Independent Advisor, based upon the assertion of a deficiency by the Internal Revenue Service against you that the Independent Advisor believes has a high probability of success determines an Overpayment has been made, any such Overpayment paid latest. If, or distributed by the Company to or for the benefit of you shall be repaid by you to the Company together with interest at the time applicable Federal rate provided in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by you to the Company if and to the extent such deemed payment would not either reduce the amount on which you are subject to tax under Section 1 and Section 4999 of the Code or generate a transaction giving rise refund of such taxes. In the event that the Independent Advisor, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to Payments or for the benefit of you together with interest at the applicable Federal rate provided in Section 7872(f)(2) of the Code; provided, that could any such Underpayment shall constitute “parachute payments,” a payment (within the stock meaning of Treas. Reg. § 1.409A-2(b)(2)) separate and apart from the Payments; and provided, further that any such Underpayment shall be deemed a disputed payment (within the meaning of Treas. Reg. § 1.409A-3(g)) and shall be made no later than the end of the first taxable year of the Company in which the Independent Advisor determines pursuant to this Section 4(b) that such Underpayment is not readily tradable on an established securities market or otherwise and the Company determines that the exemption described in Section 280G(b)(5) of the Code would apply to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Code, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such that no Payments would constitute “excess parachute paymentsdue.”

Section 280G Cutback. Notwithstanding anything in this Agreement (a) If it is determined that the aggregate of all Payments (as defined below) that would be subject to the contraryExcise Tax (as defined below), reduced by all federal, state and local taxes applicable thereto, including the Excise Tax, is less than the amount Executive would receive, after all such applicable taxes, if any payments or benefits (including without limitationExecutive received Payments equal to an amount which is $1.00 less than three times Executive’s “base amount”, any accelerated vesting of equity awards) Executive would receive pursuant to this Agreement or otherwise would constitute a “parachute payment” within the meaning of as defined in and determined under Section 280G of the Internal Revenue Code of 1986, as amended (each, a “Payment” and collectively, the “PaymentsCode”), then, in order to maximize Executive’s net after-tax return on the Payments, such Payments shall be automatically reduced by the minimum possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” All determinations required to be made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm designated by the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both or eliminated to the Company and you. Any determination extent necessary so that the aggregate Payments received by Executive will not be subject to the Accounting Firm shall be binding upon you and the CompanyExcise Tax. If a reduction in any the Payments is required under this Section 6necessary, the reduction will shall occur in the following order: first(A) by first reducing or eliminating the portion of the Payments which are not payable in cash and are not attributable to equity awards (other than that portion of the Payments subject to clause (D) hereof), (B) then by reduction reducing or eliminating cash payments (other than that portion of the Payments subject to clause (D) hereof), (C) then by reducing or eliminating the portion of the Payments which are not payable in cash payments; second, and are attributable to equity awards (other than that portion of the Payments subject to clause (D) hereof) and (D) then by cancellation reducing or eliminating the portion of accelerated vesting of equity awards; and third, by reduction of other benefits the Payments (whether payable in cash or not payable in cash) to Executivewhich Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case, case in reverse chronological order, order beginning with payments or benefits that which are to be paid latest. Ifthe farthest in time. (b) For purposes of this Section 6.8, at “Payment” shall mean any payment or distribution by the time Company or its Affiliates to or for the benefit of a transaction giving rise Executive, whether paid or payable or distributed or distributable pursuant to Payments that could constitute “parachute payments,” the stock terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan program or arrangement of the Company is not readily tradable Company, including without limitation any restricted stock unit, stock option or similar right, or the lapse or termination of any restriction on an established securities market or otherwise and the Company determines that vesting or exercisability of any of the exemption described in foregoing. For purposes of this Section 280G(b)(5) 6.7, the “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code would apply (or any successor provision thereto), and any similar tax imposed by state or local law, and any interest or penalties with respect to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Code, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such that no Payments would constitute “excess parachute paymentsexcise tax.”

Section 280G Cutback. Notwithstanding anything (a) Anything in this Agreement to the contrarycontrary notwithstanding, if in the event that the Accounting Firm shall determine that receipt of all Payments would subject You to tax under Section 4999 of the Code, the Accounting Firm shall determine whether some amount of Agreement Payments meets the definition of “Reduced Amount.” If the Accounting Firm determines that there is a Reduced Amount, then the aggregate Agreement Payments shall be reduced to such Reduced Amount. (b) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced to the Reduced Amount, the Company shall promptly give You notice to that effect and a copy of the detailed calculation thereof, and You may then elect, in Your sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the Present Value of the aggregate Agreement Payments equals the Reduced Amount). All determinations made by the Accounting Firm under this Paragraph shall be binding upon the Company and its affiliates. In connection with making determinations under this Paragraph, the Accounting Firm shall take into account the value of any payments reasonable compensation for services to be rendered by You before or benefits after the Change in Control, including any non-competition provisions that may apply to You and the Company and its affiliates shall cooperate in the valuation of any such services, including any non-competition provisions. (including without limitationc) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company or its affiliates to or for Your benefit pursuant to this Agreement which should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for Your benefit pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”), in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or You which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any accelerated vesting such Overpayment paid or distributed by the Company to or for Your benefit shall be repaid by You to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of equity awardsthe Code; provided, however, that no such repayment shall be required if and to the extent such deemed repayment would not either reduce the amount on which You are subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for Your benefit together with interest at the applicable federal rate provided for in Section 7872(f)(2) Executive would receive of the Code. All fees and expenses of the Accounting Firm in implementing the provisions of this Paragraph shall be borne by the Company. (d) The following terms shall have the following meanings for purposes of this Paragraph. (1) A “Payment” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for your benefit, whether paid or payable pursuant to this Agreement or otherwise would constitute otherwise; (2) “Agreement Payment” shall mean a Payment paid or payable pursuant to this Agreement (disregarding this Paragraph); (3) “parachute paymentNet After-Tax Receipt” within shall mean the meaning Present Value of a Payment net of all taxes imposed on you with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to your taxable income for the immediately preceding taxable year, or such other rate(s) as you shall certify, in your sole discretion, as likely to apply to you in the relevant tax year(s); (4) “Accounting Firm” shall mean Golden Parachute Tax Solutions LLC or such other nationally recognized accounting firm selected by you; (5) “Parachute Value” of a Payment shall mean the present value as of the date of the change of control for purposes of Section 280G of the Code (each, a “Payment” and collectively, of the “Payments”), the Payments shall be reduced by the minimum possible amount necessary portion of such Payment that no amounts payable to you shall constitute a “parachute payment.” All determinations required to be made under this Section 6, including whether any Payment is constitutes a “parachute payment” and under Section 280G(b)(2), as determined by the Accounting Firm for purposes of determining whether and to what extent a reduction in any Payments is required and the assumptions Excise Tax will apply to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm designated by the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company and you. Any determination by the Accounting Firm shall be binding upon you and the Company. If a reduction in any Payments is required under this Section 6, the reduction will occur in the following order: first, by reduction of cash payments; second, by cancellation of accelerated vesting of equity awardsPayment; and third, by reduction (6) “Reduced Amount” shall mean the amount of other benefits payable to Executive, Agreement Payments that (x) has a Present Value that is less than the Present Value of all Agreement Payments and (y) results in each case, in reverse chronological order, beginning with payments or benefits aggregate Net After-Tax Receipts for all Payments that are to be paid latest. If, at greater than the time of a transaction giving rise to Net After-Tax Receipts for all Payments that could constitute “parachute payments,” the stock of the Company is not readily tradable on an established securities market or otherwise and the Company determines that the exemption described in Section 280G(b)(5) of the Code would apply to the Payments result if the requisite shareholder approval aggregate Present Value of Agreement Payments were any other amount that is obtained in accordance with less than the terms and conditions Present Value of Section 280G of the Code, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such that no Payments would constitute “excess parachute paymentsall Agreement Payments.”

Section 280G Cutback. Notwithstanding anything in this Agreement a. If it is determined that the aggregate of all Payments (as defined below) that would be subject to the contraryExcise Tax (as defined below), reduced by all federal, state and local taxes applicable thereto, including the Excise Tax, is less than the amount Executive would receive, after all such applicable taxes, if any payments or benefits (including without limitationExecutive received Payments equal to an amount which is $1.00 less than three times Executive's “base amount”, any accelerated vesting of equity awards) Executive would receive pursuant to this Agreement or otherwise would constitute a “parachute payment” within the meaning of as defined in and determined under Section 280G of the Internal Revenue Code of 1986, as amended (each, a “Payment” and collectively, the “PaymentsCode”), then, in order to maximize Executive's net after-tax return on the Payments, such Payments shall be automatically reduced by the minimum possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” All determinations required to be made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm designated by the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both or eliminated to the Company and you. Any determination extent necessary so that the aggregate Payments received by Executive will not be subject to the Accounting Firm shall be binding upon you and the CompanyExcise Tax. If a reduction in any the Payments is required under this Section 6necessary, the reduction will shall occur in the following order: first(A) by first reducing or eliminating the portion of the Payments which are not payable in cash and are not attributable to equity awards (other than that portion of the Payments subject to clause (D) hereof), (B) then by reduction reducing or eliminating cash payments (other than that portion of the Payments subject to clause (D) hereof), (C) then by reducing or eliminating the portion of the Payments which are not payable in cash payments; second, and are attributable to equity awards (other than that portion of the Payments subject to clause (D) hereof) and (D) then by cancellation reducing or eliminating the portion of accelerated vesting of equity awards; and third, by reduction of other benefits the Payments (whether payable in cash or not payable in cash) to Executivewhich Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case, case in reverse chronological order, order beginning with payments or benefits that which are to be paid latest. Ifthe farthest in time. b. For purposes of this Section 6.8, at “Payment” shall mean any payment or distribution by the time Company or its Affiliates to or for the benefit of a transaction giving rise Executive, whether paid or payable or distributed or distributable pursuant to Payments that could constitute “parachute payments,” the stock terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan program or arrangement of the Company is not readily tradable Company, including without limitation any restricted stock unit, stock option or similar right, or the lapse or termination of any restriction on an established securities market or otherwise and the Company determines that vesting or exercisability of any of the exemption described in foregoing. For purposes of this Section 280G(b)(5) 6.7, the “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code would apply (or any successor provision thereto), and any similar tax imposed by state or local law, and any interest or penalties with respect to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Code, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such that no Payments would constitute “excess parachute paymentsexcise tax.”

Section 280G Cutback. Notwithstanding anything in this Agreement (a) If it is determined that the aggregate of all Payments (as defined below) that would be subject to the contraryExcise Tax (as defined below), reduced by all Federal, state and local taxes applicable thereto, including the Excise Tax, is less than the amount Executive would receive, after all such applicable taxes, if any payments or benefits (including without limitationExecutive received Payments equal to an amount which is $1.00 less than three times Executive’s “base amount”, any accelerated vesting of equity awards) Executive would receive pursuant to this Agreement or otherwise would constitute a “parachute payment” within the meaning of as defined in and determined under Section 280G of the Internal Revenue Code of 1986, as amended (each, a “Payment” and collectively, the “PaymentsCode”), then, in order to maximize Executive’s net after-tax return on the Payments, such Payments shall be automatically reduced by the minimum possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” All determinations required to be made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm designated by the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both or eliminated to the Company and you. Any determination extent necessary so that the aggregate Payments received by Executive will not be subject to the Accounting Firm shall be binding upon you and the CompanyExcise Tax. If a reduction in any the Payments is required under this Section 6necessary, the reduction will shall occur in the following order: firstfirst by reducing or eliminating the portion of the Payments which are not payable in cash and are not attributable to equity awards, second by reduction of reducing or eliminating cash payments; second, third by cancellation reducing or eliminating the portion of accelerated vesting the Payments which are not payable in cash and are attributable to equity awards (other than awards described in the following clause) and finally by reducing or eliminating the portion of equity awards; and third, by reduction of other benefits the Payments (whether payable in cash or not payable in cash) to Executivewhich Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case, case in reverse chronological order, order beginning with payments or benefits that which are to be paid latest. Ifthe farthest in time. (b) For purposes of this Section 6.7, at “Payment” shall mean any payment or distribution by the time Company to or for the benefit of a transaction giving rise Executive, whether paid or payable or distributed or distributable pursuant to Payments that could constitute “parachute payments,” the stock terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan program or arrangement of the Company is not readily tradable Company, including without limitation any restricted stock, stock option or similar right, or the lapse or termination of any restriction on an established securities market or otherwise and the Company determines that vesting or exercisability of any of the exemption described in foregoing. For purposes of this Section 280G(b)(5) 6.7, the “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code would apply (or any successor provision thereto), and any similar tax imposed by state or local law, and any interest or penalties with respect to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Code, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such that no Payments would constitute “excess parachute paymentsexcise tax.”

Section 280G Cutback. Notwithstanding anything Anything in this Agreement to the contrarycontrary notwithstanding, if in the event it shall be determined that any payments payment or benefits (including without limitationdistribution by the Company or its successor to or for the benefit of Executive, any accelerated vesting of equity awards) Executive would receive whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “Excise Tax”), then if the aggregate of all Payments that would be subject to the Excise Tax, reduced by all Federal, state and local taxes applicable thereto, including the Excise Tax is less than the amount Executive would receive, after all such applicable taxes, if Executive received Payments equal to an amount which is $1.00 less than three times the Executive’s “base amount”, as defined in and determined under Section 280G of the Code, then, such Payments shall be reduced or eliminated to the extent necessary so that the aggregate Payments received by Executive will not be subject to the Excise Tax. If a reduction in the Payments is necessary, reduction shall occur in the following order: first, a reduction of cash payments not attributable to equity awards which vest in an accelerated basis; second, a reduction in any other cash amount payable to Executive; third, the reduction of any employee benefit valued as a “parachute payment” within the meaning of (as defined in Section 280G of the Code (each, a “Payment” Code); and collectivelyfourth, the “Payments”)cancellation of accelerated vesting of stock awards. If acceleration of vesting of stock award compensation is to be reduced, the Payments such acceleration of vesting shall be reduced by cancelled in the minimum possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” reverse order of the date of grant of Executive’s stock awards. All determinations required to be made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required 3.3 and the assumptions to be utilized in arriving at such determination, determinations shall be made by a nationally recognized registered public accounting firm designated by Executive and reasonably acceptable to the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company All fees and you. Any determination by expenses of the Accounting Firm shall be binding upon you and the Company. If a reduction in any Payments is required under this Section 6, the reduction will occur in the following order: first, borne solely by reduction of cash payments; second, by cancellation of accelerated vesting of equity awards; and third, by reduction of other benefits payable to Executive, in each case, in reverse chronological order, beginning with payments or benefits that are to be paid latest. If, at the time of a transaction giving rise to Payments that could constitute “parachute payments,” the stock of the Company is not readily tradable on an established securities market or otherwise and the Company determines that the exemption described in Section 280G(b)(5) of the Code would apply to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Code, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such that no Payments would constitute “excess parachute paymentsits successor.”