Common use of Section 280G Matters Clause in Contracts

Section 280G Matters. (a) Anything in this Agreement to the contrary notwithstanding, in the event that the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder. For purposes of all present-value determinations required to be made under this Paragraph 9, Employer and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations § 1-280G, Q&A-32. (b) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, Employer shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Paragraph 9 shall be binding upon Employer and the Executive and shall be made as soon as reasonably practicable and in no event later than five (5) days following the Effective Date. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. All reasonable fees and expenses of the Accounting Firm shall be borne solely by Employer. (c) 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 Employer to or for the benefit of the Executive pursuant to this Agreement that should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts that will have not been paid or distributed by Employer to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”). In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Employer or the Executive that the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any such Overpayment paid or distributed by Employer to or for the benefit of the Executive shall be repaid by the Executive to Employer together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the 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 the Executive is 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 Employer to or for the benefit of the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. (d) Prior to the Effective Date, Employer shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, any agreement by which Executive has agreed to refrain from performing services for other entities), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code. (e) For purposes of this Paragraph 9:

Section 280G Matters. If the benefits described in Section 2 herein, as applicable, (a) Anything in this Agreement to the contrary notwithstanding, in the event that the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below"Severance Payment") would otherwise constitute a parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section would be subject the Executive to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive shall either: (i) pay the Excise Tax, or (ii) have the benefits reduced to such lesser extent as would result in no portion of such 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 benefits, notwithstanding that all or some portion of such 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 5 will be made in writing by a national "Big Four" accounting firm selected by the Accounting Firm shall determine whether to reduce any of the Payments paid Company or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments such other person or entity to which the parties mutually agree (the "Accountants"), whose determination will be conclusive and binding upon Executive is entitled hereunderand the Company for all purposes. For purposes of all present-value determinations making the calculations required to be made under by this Paragraph 9Section 5, Employer 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 elect shall furnish to use the applicable federal rate that is Accountants such information and documents as the Accountants may reasonably request in effect on order to make a determination under this Section. The Company shall bear all costs the Effective Date pursuant to Treasury Regulations § 1-280G, Q&A-32. (b) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the aggregate, equals the Safe Harbor Amount, Employer shall promptly give the Executive notice following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Paragraph 9 shall be binding upon Employer and the Executive and shall be made as soon as reasonably practicable and in no event later than five (5) days following the Effective Date. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. All reasonable fees and expenses of the Accounting Firm shall be borne solely by Employer. (c) 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 Employer to or for the benefit of the Executive pursuant to this Agreement that should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts that will have not been paid or distributed by Employer to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”)Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Employer or the Executive that the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any such Overpayment paid or distributed by Employer to or for the benefit reverse order of the Executive shall be repaid by the Executive to Employer together with interest at the applicable federal rate provided date of grant for in Section 7872(f)(2) of the 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 the Executive is 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 Employer to or for the benefit of the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the CodeExecutive's equity awards. (d) Prior to the Effective Date, Employer shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, any agreement by which Executive has agreed to refrain from performing services for other entities), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code. (e) For purposes of this Paragraph 9:

Section 280G Matters. (a) Anything in this Agreement to the contrary notwithstanding, in In the event that any payment, accelerated vesting or other benefit payable to Executive under this Agreement together with any other benefits received by Executive under any other Agreement would constitute "parachute payments" within the Accounting Firm meaning of Section 280G of the Code (as defined below“Parachute Payments”), Executive will be entitled to receive either (i) shall determine the full amount of the Parachute Payments, or (ii) the maximum amount that receipt may be provided to Executive without resulting in any portion of all such Parachute Payments being subject to the excise tax imposed by Section 4999 of the Code, whichever of clauses (as defined belowi) would subject the Executive to and (ii), after taking into account applicable federal, state, and local taxes and the excise tax under Section 4999 of the Code, results in the Accounting Firm shall determine whether to reduce any receipt by Executive, on an after-tax basis, of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that greatest portion of the Parachute Value Payments. The repayment and/or reduction of payments or benefits which would be Parachute Payments (each a "Payment") contemplated by the preceding sentence shall be implemented by determining the Parachute Payment Ratio (as defined below) of all Paymentsfor each Payment and then reducing the Payments in order beginning with the Payments with the highest Parachute Payment Ratio. For Payments with the same Parachute Payment Ratio, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement such Payments shall be so reduced only if based on the Accounting Firm determines that time of payment of such Payments, with amounts having later payment dates being reduced first. For Payments with the Executive would have same Parachute Payment Ratio and the same time of payment, such Payments shall be reduced on a greater Net After-Tax Receipt pro rata basis (as defined belowbut not below zero) of aggregate prior to reducing Payments if the Agreement Payments were so reducedwith a lower Parachute Payment Ratio. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive Any such repayment or reduction will in all Agreement Payments to which the Executive is entitled hereunder. events comply with 409A. For purposes of all present-the foregoing, “Parachute Payment Ratio” shall mean a fraction, the numerator of which is the value determinations required to be made under this Paragraph 9, Employer and the Executive elect to use of the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations § 1-280G, Q&A-32. (b) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, Employer shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Paragraph 9 shall be binding upon Employer and the Executive and shall be made as soon as reasonably practicable and in no event later than five (5) days following the Effective Date. For Payment for purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. All reasonable fees and expenses of the Accounting Firm shall be borne solely by Employer. (c) 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 Employer to or for the benefit of the Executive pursuant to this Agreement that should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts that will have not been paid or distributed by Employer to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”). In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Employer or the Executive that the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any such Overpayment paid or distributed by Employer to or for the benefit of the Executive shall be repaid by the Executive to Employer together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the 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 the Executive is 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 Employer to or for the benefit of the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. (d) Prior to the Effective Date, Employer shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, any agreement by which Executive has agreed to refrain from performing services for other entities), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from and the definition denominator of which is the term “parachute payment” within the meaning intrinsic value of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Codesuch Payment. (e) For purposes of this Paragraph 9:

Section 280G Matters. (a) Anything in Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary notwithstandingcontrary, in the event that the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce if any of the Payments paid payments or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder. For purposes of all present-value determinations required to be made under this Paragraph 9, Employer and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations § 1-280G, Q&A-32. (b) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, Employer shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Paragraph 9 shall be binding upon Employer and the Executive and shall be made as soon as reasonably practicable and in no event later than five (5) days following the Effective Date. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. All reasonable fees and expenses of the Accounting Firm shall be borne solely by Employer. (c) 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 Employer to or for the benefit of the Executive pursuant to this Agreement that should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts that will have not been paid or distributed by Employer to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”). In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Employer or the Executive that the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any such Overpayment paid or distributed by Employer to or for the benefit of the Executive shall be repaid by the Executive to Employer together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the 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 the Executive is 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 Employer to or for the benefit of the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. (d) Prior to the Effective Date, Employer shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services benefits provided or to be provided by the Company or its affiliates to Executive or for Executive’s benefit pursuant to the terms of this Agreement or otherwise (including, without limitation, any agreement by which Executive has agreed to refrain from performing services for other entities), such that the “Covered Payments”) constitute parachute payments in respect of such services may be considered reasonable compensation (the “Parachute Payments”) within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from and would, but for this Section be subject to the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations excise tax imposed under Section 280G 4999 of the Code in accordance (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with Q&A-5(arespect to such taxes (collectively, the “Excise Tax”), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to Executive of the final regulations Covered Payments after payment of the Excise Tax to (ii) the Net Benefit to Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 280G 409A of the Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. The calculations and determinations under this Section shall be provided by an accounting firm selected by the Company (and reasonably acceptable to Executive) prior to the applicable change in control transaction (the “Accounting Firm”) and the Company shall pay the cost of such Accounting Firm. The Accounting Firm shall provide such calculations prior to the consummation of the change in control transaction and its determinations shall be binding on Executive and the Company absent manifest error. (e) For purposes of this Paragraph 9:

Section 280G Matters. (a) Anything in this Agreement to the contrary notwithstanding, in In the event that any payment, accelerated vesting or other benefit payable to Executive under this Agreement together with any other benefits received by Executive under any other Agreement would constitute "parachute payments" within the Accounting Firm meaning of Section 280G of the Code (as defined below“Parachute Payments”), Executive will be entitled to receive either (i) shall determine the full amount of the Parachute Payments, or (ii) the maximum amount that receipt may be provided to Executive without resulting in any portion of all such Parachute Payments being subject to the excise tax imposed by Section 4999 of the Code, whichever of clauses (as defined belowi) would subject the Executive to and (ii), after taking into account applicable federal, state, and local taxes and the excise tax under Section 4999 of the Code, results in the Accounting Firm shall determine whether to reduce any receipt by Executive, on an after-tax basis, of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that greatest portion of the Parachute Value Payments. The repayment and/or reduction of payments or benefits which would be Parachute Payments (each, a "Payment") contemplated by the preceding sentence shall be implemented by determining the Parachute Payment Ratio (as defined below) of all Paymentsfor each Payment and then reducing the Payments in order beginning with the Payments with the highest Parachute Payment Ratio. For Payments with the same Parachute Payment Ratio, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement such Payments shall be so reduced only if based on the Accounting Firm determines that time of payment of such Payments, with amounts having later payment dates being reduced first. For Payments with the Executive would have same Parachute Payment Ratio and the same time of payment, such Payments shall be reduced on a greater Net After-Tax Receipt pro rata basis (as defined belowbut not below zero) of aggregate prior to reducing Payments if the Agreement Payments were so reducedwith a lower Parachute Payment Ratio. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive Any such repayment or reduction will in all Agreement Payments to which the Executive is entitled hereunder. events comply with 409A. For purposes of all present-the foregoing, “Parachute Payment Ratio” shall mean a fraction, the numerator of which is the value determinations required to be made under this Paragraph 9, Employer and the Executive elect to use of the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations § 1-280G, Q&A-32. (b) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, Employer shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Paragraph 9 shall be binding upon Employer and the Executive and shall be made as soon as reasonably practicable and in no event later than five (5) days following the Effective Date. For Payment for purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. All reasonable fees and expenses of the Accounting Firm shall be borne solely by Employer. (c) 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 Employer to or for the benefit of the Executive pursuant to this Agreement that should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts that will have not been paid or distributed by Employer to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”). In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Employer or the Executive that the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any such Overpayment paid or distributed by Employer to or for the benefit of the Executive shall be repaid by the Executive to Employer together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the 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 the Executive is 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 Employer to or for the benefit of the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. (d) Prior to the Effective Date, Employer shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, any agreement by which Executive has agreed to refrain from performing services for other entities), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from and the definition denominator of which is the term “parachute payment” within the meaning intrinsic value of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Codesuch Payment. (e) For purposes of this Paragraph 9:

Section 280G Matters. (a) Anything in this Agreement to the contrary notwithstanding, in In the event that any payment, accelerated vesting or other benefit payable to Executive under this Agreement together with any other benefits received by Executive under any other Agreement would constitute "parachute payments" within the Accounting Firm meaning of Section 280G of the Code (as defined below“Parachute Payments”), Executive will be entitled to receive either (i) shall determine the full amount of the Parachute Payments, or (ii) the maximum amount that receipt may be provided to Executive without resulting in any portion of all such Parachute Payments being subject to the excise tax imposed by Section 4999 of the Code, whichever of clauses (as defined belowi) would subject the Executive to and (ii), after taking into account applicable federal, state, and local taxes and the excise tax under Section 4999 of the Code, results in the Accounting Firm shall determine whether to reduce any receipt by Executive, on an after-tax basis, of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that greatest portion of the Parachute Value Payments. The repayment and/or reduction of payments or benefits which would be Parachute Payments (each a "Payment") contemplated by the preceding sentence shall be implemented by determining the Parachute Payment Ratio (as defined below) of all Paymentsfor each Payment and then reducing the Payments in order beginning with the Payments with the highest Parachute Payment Ratio. For Payments with the same Parachute Payment Ratio, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement such Payments shall be so reduced only if based on the Accounting Firm determines that time of payment of such Payments, with amounts having later payment dates being reduced first. For Payments with the Executive would have same Parachute Payment Ratio and the same time of payment, such Payments shall be reduced on a greater Net After-Tax Receipt pro rata basis (as defined belowbut not below zero) of aggregate prior to reducing Payments if the Agreement Payments were so reducedwith a lower Parachute Payment Ratio. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive Any such repayment or reduction will in all Agreement Payments to which the Executive is entitled hereunder. events comply with Section 409A. For purposes of all present-the foregoing, “Parachute Payment Ratio” shall mean a fraction, the numerator of which is the value determinations required to be made under this Paragraph 9, Employer and the Executive elect to use of the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations § 1-280G, Q&A-32. (b) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, Employer shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Paragraph 9 shall be binding upon Employer and the Executive and shall be made as soon as reasonably practicable and in no event later than five (5) days following the Effective Date. For Payment for purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. All reasonable fees and expenses of the Accounting Firm shall be borne solely by Employer. (c) 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 Employer to or for the benefit of the Executive pursuant to this Agreement that should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts that will have not been paid or distributed by Employer to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”). In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Employer or the Executive that the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any such Overpayment paid or distributed by Employer to or for the benefit of the Executive shall be repaid by the Executive to Employer together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the 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 the Executive is 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 Employer to or for the benefit of the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. (d) Prior to the Effective Date, Employer shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, any agreement by which Executive has agreed to refrain from performing services for other entities), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from and the definition denominator of which is the term “parachute payment” within the meaning intrinsic value of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Codesuch Payment. (e) For purposes of this Paragraph 9:

Section 280G Matters. (a) Anything in this Agreement to the contrary notwithstanding, in the event that the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject the Executive Advisor to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this the Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive Advisor would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive Advisor would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive Advisor shall receive all Agreement Payments to which the Executive Advisor is entitled hereunder. For purposes of all present-value determinations required to be made under this Paragraph 9Section 8, Employer Parent and the Executive Advisor elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations § 1-280G, Q&A-32. (b) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, Employer Parent shall promptly give the Executive Advisor notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under Section 1 and this Paragraph 9 Section 8 shall be binding upon Employer Parent and the Executive Advisor and shall be made as soon as reasonably practicable and in no event later than five (5) 5 days following the Effective Date. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the Retention Payment beginning with the final installment. All reasonable fees and expenses of the Accounting Firm shall be borne solely by EmployerParent. (c) 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 Employer Parent or the Company to or for the benefit of the Executive Advisor pursuant to this Agreement that should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts that will have not been paid or distributed by Employer Parent or the Company to or for the benefit of the Executive Advisor pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”). In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Employer Parent, the Company or the Executive Advisor that the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any such Overpayment paid or distributed by Employer Parent or the Company to or for the benefit of the Executive Advisor shall be repaid by the Executive Advisor to Employer Parent or the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the 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 the Executive Advisor is 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 Employer Parent or the Company to or for the benefit of the Executive Advisor together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. (d) Prior to the Effective Date, Employer Parent shall cooperate with the Executive Advisor in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive Advisor (including, without limitation, any agreement by which Executive has agreed the Advisor’s agreeing to refrain from performing services for other entitiespursuant to Section 10), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code. (e) For The Advisor shall exercise all outstanding stock options to purchase shares of common stock of the Company held by the Advisor as of the date of this Agreement on or prior to December 31, 2017, which exercise may be effectuated on a net-share settlement basis with respect to both the exercise price and applicable employment and income tax withholdings. The Advisor agrees that if the Advisor fails to so exercise such stock options then the Agreement Payments shall be subject to reduction to the Safe Harbor Amount notwithstanding the fact that the Advisor would have a greater Net After-Tax Receipt if the Payments were not so reduced. (f) The following terms shall have the following meanings for purposes of this Paragraph 9Agreement: