Common use of SECTION 4999 EXCISE TAX Clause in Contracts

SECTION 4999 EXCISE TAX. (a) If any payments, rights or benefits (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement of Executive with the Company or with any person affiliated with the Company and whether or not the Executive’s employment has then terminated (the “Payments”)) received or to be received by Executive will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), then, except as set forth in Section 5.2(b) below, the Company shall pay to Executive an amount in addition to the Payments (the “Gross-Up Payment”) as calculated below. The Gross-Up Payment shall be in an amount such that, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment tax and Excise Tax on the Gross-Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained by the Executive shall be equal to the Payments. (b) Notwithstanding anything in this Agreement to the contrary, if the amount of Payments that will be subject to the Excise Tax does not exceed the amount of Payments that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000, then Executive’s taxable cash-based benefits under this Agreement will first be reduced in the order selected by Executive, and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as a “parachute payment” as defined in Treasury Regulations promulgated under Section 280G of the Code and IRS revenue rulings, revenue procedures and other official guidance) shall be reduced in the order selected by Executive, and then any other Payments shall be reduced as reasonably determined by the Company, to the extent necessary to avoid imposition of the Excise Tax. If Executive does not select the amount to be reduced within the time prescribed by the Company, the reductions specified herein shall be made by the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive it. (c) The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to this Section 5.2 are set forth in Appendix A attached hereto. For purposes of making the determinations and calculations required herein, the Consultant may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code, provided that the Consultant shall make such determinations and calculations on the basis of “substantial authority” (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to both the Company and Executive.

SECTION 4999 EXCISE TAX. (a) If any payments, rights or benefits (whether pursuant to the terms of Notwithstanding anything in this Agreement or any other plan, arrangement or agreement of between the Executive with and the Company (or with any person affiliated with of its subsidiaries or affiliates) to the Company and whether or not contrary, in the Executive’s employment has then terminated event that the provisions of Section 280G of the Internal Revenue Code of 1986, as amended (the “PaymentsCode”)) relating to “parachute payments” (as defined in the Code) shall be applicable to any payment or benefit received or to be received by the Executive from the Company or its affiliates in connection with a change in the ownership or effective control of the Company within the meaning of Section 280G of the Code (a “Change in Control Transaction”) (collectively, “Payments”), then (a) at the Executive’s request, the Company agrees to submit such Payments to a shareholder vote intended to comply with the provisions of Section 280G(b)(5) of the Code, or (b) in the event that the Executive does not request a shareholder vote as set forth above or the provisions of Section 280G(b)(5) are inapplicable to the Company, then any such Payments shall be equal to the “Reduced Amount” where the Reduced Amount is (1) the largest portion of the Payments that will be result in no portion of such Payments being subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code Code, or (or any similar tax that may hereafter 2) the entire amount of the Payments otherwise scheduled to be imposedpaid (without reduction), then, except as set forth in Section 5.2(b) below, whichever of the Company shall pay to Executive an amount in addition to the Payments (the “Gross-Up Payment”) as calculated below. The Gross-Up Payment shall be in an amount such that, forgoing amounts after deduction of any Excise Tax on the Payments and any taking into account all applicable federal, state and local employment taxes, income taxes and employment the excise tax and Excise Tax on the Gross-Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained by the Executive shall be equal to the Payments. (b) Notwithstanding anything in this Agreement to the contrary, if the amount of Payments that will be subject to the Excise Tax does not exceed the amount of Payments that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000, then Executive’s taxable cash-based benefits under this Agreement will first be reduced in the order selected by Executive, and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as a “parachute payment” as defined in Treasury Regulations promulgated under Section 280G 4999 of the Code (all computed at the highest applicable merged rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of all state and IRS revenue rulingslocal taxes), revenue procedures and other official guidance) shall be reduced results in the order selected Executive’s receipt, on an after-tax basis, of the greatest amount of Payments. If subsection (1) above applies and a reduced amount of the Payments is payable, then any reduction of Payments required by Executivesuch provision shall occur in the following order: (i) first, a reduction of any Payments that are exempt from Section 409A in a manner the Company reasonably determines will provide the Executive with the greatest post-reduction economic benefit, and then (ii) second, a reduction of any Payments that are subject to Section 409A on a pro-rata basis or such other Payments shall be reduced manner that complies with Section 409A, as reasonably determined by the Company, to the extent necessary to avoid imposition of the Excise Tax. If Executive does not select the amount to be reduced within the time prescribed by the Company, the reductions specified herein shall be made by the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive it. (cb) The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to this Section 5.2 are set forth In connection with a Change in Appendix A attached hereto. For purposes of making the determinations and calculations required hereinControl Transaction, the Consultant may rely on reasonable, good faith interpretations concerning Company shall engage a certified public accounting firm (“Accountants”) to perform the application of calculations to determine if the Payments to the Executive would reasonably be subject to Section 280G and 4999 of the Code, provided and the Company shall use commercially reasonable efforts to (1) cause the Accountants to finalize such calculations and (2) deliver such calculations and supporting documentation to the Executive, by no later than five (5) days before the closing of the Change in Control Transaction. If the Executive, in good faith, disagrees with or disputes any of the assumptions, findings or determinations of the Accountants in respect of such calculations, the Company shall use reasonable efforts to cause its Accountants to consider in good faith the Executive’s position and revise such calculations if the Accountants determine that it is more-likely-than-not, based on the technical merits, that the Consultant shall make such determinations and calculations on Executive’s position will be sustained upon examination by the basis of “substantial authority” (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to both the Company and ExecutiveInternal Revenue Service.

SECTION 4999 EXCISE TAX. (a) If any payments, rights or benefits (whether pursuant to the terms of Notwithstanding anything in this Agreement or any other plan, arrangement or agreement of between the Executive with and the Company (or with any person affiliated with of its subsidiaries or affiliates) to the Company and whether or not contrary, in the Executive’s employment has then terminated event that the provisions of Section 280G of the Internal Revenue Code of 1986, as amended (the “PaymentsCode”)) relating to “parachute payments” (as defined in the Code) shall be applicable to any payment or benefit received or to be received by the Executive from the Company or its affiliates in connection with a change in the ownership or effective control of the Company within the meaning of Section 280G of the Code (a “Change of Control Transaction”) (collectively, “Payments”), then (a) at the Executive’s request, the Company agrees to submit such Payments to a shareholder vote intended to comply with the provisions of Section 280G(b)(5) of the Code, or (b) in the event that the Executive does not request a shareholder vote as set forth above or the provisions of Section 280G(b)(5) are inapplicable to the Company, then any such Payments shall be equal to the “Reduced Amount” where the Reduced Amount is (1) the largest portion of the Payments that will be result in no portion of such Payments being subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code Code, or (or any similar tax that may hereafter 2) the entire amount of the Payments otherwise scheduled to be imposedpaid (without reduction), then, except as set forth in Section 5.2(b) below, whichever of the Company shall pay to Executive an amount in addition to the Payments (the “Gross-Up Payment”) as calculated below. The Gross-Up Payment shall be in an amount such that, forgoing amounts after deduction of any Excise Tax on the Payments and any taking into account all applicable federal, state and local employment taxes, income taxes and employment the excise tax and Excise Tax on the Gross-Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained by the Executive shall be equal to the Payments. (b) Notwithstanding anything in this Agreement to the contrary, if the amount of Payments that will be subject to the Excise Tax does not exceed the amount of Payments that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000, then Executive’s taxable cash-based benefits under this Agreement will first be reduced in the order selected by Executive, and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as a “parachute payment” as defined in Treasury Regulations promulgated under Section 280G 4999 of the Code (all computed at the highest applicable merged rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of all state and IRS revenue rulingslocal taxes), revenue procedures and other official guidance) shall be reduced results in the order selected by Executive’s receipt, on an after-tax basis, of the greatest amount of Payments. If subsection (1) above applies and a reduced amount of the Payments is payable, then any reduction of Payments required by such provision shall occur in the following order: (i) first, a reduction of any Payments that are subject to Section 409A on a pro-rata basis or such other Payments shall be reduced manner that complies with Section 409A, as reasonably determined by the Company, to the extent necessary to avoid imposition and (ii) second, a reduction of the Excise Tax. If Executive does not select the amount to be reduced within the time prescribed by the Company, the reductions specified herein shall be made by any Payments that are exempt from Section 409A in a manner the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and reasonably determines will provide the Executive shall have no further rights to receive itwith the greatest post-reduction economic benefit. (cb) The process for calculating the Excise Tax, determining the amount In connection with a Change of any Gross-Up Payment and other procedures relating to this Section 5.2 are set forth in Appendix A attached hereto. For purposes of making the determinations and calculations required hereinControl Transaction, the Consultant may rely on reasonable, good faith interpretations concerning Company shall engage a certified public accounting firm (“Accountants”) to perform the application of calculations to determine if the Payments to the Executive would reasonably be subject to Section 280G and 4999 of the Code, provided and the Company shall use commercially reasonable efforts to (1) cause the Accountants to finalize such calculations and (2) deliver such calculations and supporting documentation to the Executive, by no later than five (5) days before the closing of the Change of Control Transaction. If the Executive, in good faith, disagrees with or disputes any of the assumptions, findings or determinations of the Accountants in respect of such calculations, the Company shall use reasonable efforts to cause its Accountants to consider in good faith the Executive’s position and revise such calculations if the Accountants determine that it is more-likely-than-not, based on the technical merits, that the Consultant shall make such determinations and calculations on Executive’s position will be sustained upon examination by the basis of “substantial authority” (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to both the Company and ExecutiveInternal Revenue Service.

SECTION 4999 EXCISE TAX. The Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment received under the Agreement, including, without limitation, any excise tax imposed by Section 4999 of the Code (a) If the "Excise Tax"); provided, however, that any payments, rights payment or benefits benefit received or to be received by the Executive in connection with a Change in Control or the termination of employment (whether pursuant to payable under the terms of this the Agreement or any other plan, arrangement or agreement of Executive with the Company or with any person affiliated with an affiliate (collectively, the Company and whether or not "Payments") that would constitute a "parachute payment" within the Executive’s employment has then terminated (meaning of Section 280G of the “Payments”)) received or Code, shall be reduced to be received by Executive will the extent necessary so that no portion thereof shall be subject to the Excise Tax but only if, by reason of such reduction, the net after-tax benefit received by the Executive shall exceed the net after-tax benefit that would be received by the Executive if no such reduction was made. For purposes of this Section: (a) The "net after-tax benefit" shall mean (i) the “Excise Tax”) imposed by Payments which the Executive receives or is then entitled to receive from the Company or its affiliates that would constitute "parachute payments" within the meaning of Section 4999 280G of the Code Code, less (or any similar tax that may hereafter be imposed), then, except as set forth in Section 5.2(bii) below, the Company shall pay to Executive an amount in addition to the Payments (the “Gross-Up Payment”) as calculated below. The Gross-Up Payment shall be in an amount such that, after deduction of any Excise Tax on the Payments and any all federal, state and local income and employment tax and Excise Tax on the Gross-Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained taxes payable by the Executive with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be equal paid to the PaymentsExecutive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to the payments and benefits described in (i) above. (b) Notwithstanding anything in All determinations under this Agreement to the contrary, if the amount of Payments that Section will be subject to the Excise Tax does not exceed the amount of Payments made by an accounting firm or law firm that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000, then Executive’s taxable cash-based benefits under is selected for this Agreement will first be reduced in the order selected by Executive, and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as a “parachute payment” as defined in Treasury Regulations promulgated under Section 280G of the Code and IRS revenue rulings, revenue procedures and other official guidance) shall be reduced in the order selected by Executive, and then any other Payments shall be reduced as reasonably determined purpose by the Company, ’s Chief Executive Officer prior to the extent necessary to avoid imposition Change in Control (the "280G Firm"). All fees and expenses of the Excise Tax. If Executive does not select the amount to 280G Firm shall be reduced within the time prescribed borne by the Company, . The Company will direct the reductions specified herein shall be made by 280G Firm to submit any determination it makes under this Section and detailed supporting calculations to the Executive and the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive itsoon as reasonably practicable. (c) If the 280G Firm determines that one or more reductions are required under this Section, the 280G Firm shall also determine which Payments shall be reduced (first from cash payments and then from non-cash benefits) to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to the Executive. The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to 280G Firm shall make reductions required under this Section 5.2 are set forth in Appendix A attached hereto. For purposes a manner that maximizes the net after-tax amount payable to the Executive. (d) As a result of making the determinations and calculations required herein, the Consultant may rely on reasonable, good faith interpretations concerning uncertainty in the application of Section 280G at the time that the 280G Firm makes its determinations under this Section, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed (collectively, the "Overpayments"), or that additional amounts should be paid or distributed to the Executive (collectively, the "Underpayments"). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the 280G Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay the Overpayment to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Section 4999 of the Code or generate a refund of tax imposed under Section 4999 of the Code. If the 280G Firm determines, provided based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Consultant shall make such 280G Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company. (e) The parties will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations on the basis of “substantial authority” (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to both the Company and Executivecontemplated by this Section.

SECTION 4999 EXCISE TAX. (a) If any payments, rights or benefits (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement of Executive with the Company or with any person affiliated with the Company and whether or not the Executive’s employment has then terminated Company) (the “Payments”)) received or to be received by Executive will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), then, except as set forth in Section 5.2(b10(b) below, the Company shall pay to Executive an amount in addition to the Payments (the “Gross-Up Payment”) as calculated below. The Gross-Gross Up Payment shall be in an amount such that, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment tax and Excise Tax on the Gross-Gross Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained by the Executive shall be equal to the Payments. (b) Notwithstanding anything in this Agreement to the contrary, if the amount of Payments that will be subject to the Excise Tax does not exceed four times the amount “Base Amount” (as defined in Section 280G(d)(2) of Payments that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000Code), then Executive’s taxable cash-based benefits under this Agreement will first be reduced in the order selected by Executive, and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as a “parachute payment” as defined in Treasury Regulations promulgated under Section 280G of the Code and IRS revenue rulings, revenue procedures and other official guidance) shall be reduced in the order selected by Executive, and then any other Payments shall be reduced as reasonably determined by the Company, to the extent necessary to avoid imposition of the Excise Tax. If Executive does not select the amount to be reduced within the time prescribed by the Company, the reductions specified herein shall be made by the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive it. (c) The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to this Section 5.2 10 are set forth in Appendix A B attached hereto. For purposes of making the determinations and calculations required herein, the Consultant Accounting Firm (as defined in Appendix B) may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code, provided that the Consultant Accounting Firm shall make such determinations and calculations on the basis of “substantial authority” (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to both the Company and Executive.

SECTION 4999 EXCISE TAX. (a) If any payments, rights or benefits (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement of Executive with the Company or with any person affiliated with the Company and whether or not the Executive’s employment has then terminated Company) (the “"Payments”)") received or to be received by Executive will be subject to the tax (the “"Excise Tax”") imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), then, except as set forth in Section 5.2(b10(b) below, the Company shall pay to Executive an amount in addition to the Payments (the “"Gross-Up Payment”") as calculated below. The Gross-Gross Up Payment shall be in an amount such that, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment tax and Excise Tax on the Gross-Gross Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained by the Executive shall be equal to the Payments. (b) Notwithstanding anything in this Agreement to the contrary, if the amount of Payments that will be subject to the Excise Tax does not exceed four times the amount "Base Amount" (as defined in Section 280G(d)(2) of Payments that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000Code), then Executive’s 's taxable cash-based benefits under this Agreement will first be reduced in the order selected by Executive, and then, if necessary, Executive’s 's equity-based compensation (based on the value of such equity-based compensation as a “"parachute payment” " as defined in Treasury Regulations promulgated under Section 280G of the Code and IRS revenue rulings, revenue procedures and other official guidance) shall be reduced in the order selected by Executive, and then any other Payments shall be reduced as reasonably determined by the Company, to the extent necessary to avoid imposition of the Excise Tax. If Executive does not select the amount to be reduced within the time prescribed by the Company, the reductions specified herein shall be made by the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive it. (c) The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to this Section 5.2 10 are set forth in Appendix A B attached hereto. For purposes of making the determinations and calculations required herein, the Consultant Accounting Firm (as defined in Appendix B) may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code, provided that the Consultant Accounting Firm shall make such determinations and calculations on the basis of “"substantial authority” " (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to both the Company and Executive.

SECTION 4999 EXCISE TAX. The Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment received under the Agreement, including, without limitation, any excise tax imposed by Section 4999 of the Code (a) If the "Excise Tax"); provided, however, that any payments, rights payment or benefits benefit received or to be received by the Executive in connection with a Change in Control or the termination of employment (whether pursuant to payable under the terms of this the Agreement or any other plan, arrangement or agreement of Executive with the Company or with any person affiliated with an affiliate (collectively, the Company and whether or not "Payments") that would constitute a "parachute payment" within the Executive’s employment has then terminated (meaning of Section 280G of the “Payments”)) received or Code, shall be reduced to be received by Executive will the extent necessary so that no portion thereof shall be subject to the Excise Tax but only if, by reason of such reduction, the net after-tax benefit received by the Executive shall exceed the net after-tax benefit that would be received by the Executive if no such reduction was made. For purposes of this Section 5.2: (a) The "net after-tax benefit" shall mean (i) the “Excise Tax”) imposed by Payments which the Executive receives or is then entitled to receive from the Company or its affiliates that would constitute "parachute payments" within the meaning of Section 4999 280G of the Code Code, less (or any similar tax that may hereafter be imposed), then, except as set forth in Section 5.2(bii) below, the Company shall pay to Executive an amount in addition to the Payments (the “Gross-Up Payment”) as calculated below. The Gross-Up Payment shall be in an amount such that, after deduction of any Excise Tax on the Payments and any all federal, state and local income and employment tax and Excise Tax on the Gross-Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained taxes payable by the Executive with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be equal paid to the PaymentsExecutive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to the payments and benefits described in (i) above. (b) Notwithstanding anything in All determinations under this Agreement Section 5.2 will be made by an accounting firm or law firm that is selected for this purpose by the Company's Chief Executive Officer prior to the contrary, if Change in Control (the amount "280G Firm"). All fees and expenses of Payments that the 280G Firm shall be borne by the Company. The Company will be subject direct the 280G Firm to submit any determination it makes under this Section 5.2 and detailed supporting calculations to the Excise Tax does not exceed Executive and the Company as soon as reasonably practicable. (c) If the 280G Firm determines that one or more reductions are required under this Section 5.2, the 280G Firm shall also determine which Payments shall be reduced, and the Company shall pay such reduced amount of Payments that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000, then Executive’s taxable cash-based benefits . The 280G Firm shall make reductions required under this Agreement will first be reduced Section 5.2 in a manner that maximizes the net after-tax amount payable to the Executive. If a reduction in the order selected by ExecutivePayments is required under this Section 5.2(c), and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as a “parachute payment” as defined in Treasury Regulations promulgated under Section 280G of the Code and IRS revenue rulings, revenue procedures and other official guidance) Payments shall be reduced in the order selected by Executive, and then following order: (A) reduction of any cash payment (excluding any cash payment with respect to the acceleration of equity awards) that is otherwise payable to the Executive that is exempt from Section 409A of the Code; (B) reduction of any other Payments shall be reduced as reasonably determined by the Company, payments or benefits otherwise payable to the extent necessary to avoid imposition Executive (other than those described in clause (C) below) on a pro-rata basis or such other manner that complies with Section 409A of the Excise Tax. If Code; and (C) reduction of any payment or benefit with respect to the acceleration of equity awards that is otherwise payable to the Executive does (on a pro-rata basis as between equity awards that are covered by Section 409A of the Code and those that are not select (or such other manner that complies with Section 409A of the amount to be reduced within the time prescribed by the Company, the reductions specified herein shall be made by the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive itCode)). (cd) The process for calculating As a result of the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to this Section 5.2 are set forth uncertainty in Appendix A attached hereto. For purposes of making the determinations and calculations required herein, the Consultant may rely on reasonable, good faith interpretations concerning the application of Section 280G at the time that the 280G Firm makes its determinations under this Section 5.2, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed (collectively, the "Overpayments"), or that additional amounts should be paid or distributed to the Executive (collectively, the "Underpayments"). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the 280G Firm believes has a high probability of success, or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay the Overpayment to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Section 4999 of the Code or generate a refund of tax imposed under Section 4999 of the Code. If the 280G Firm determines, provided based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Consultant shall make such 280G Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company. (e) The parties will provide the 280G Firm access to and copies of any books, records and documents in their possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations on the basis of “substantial authority” (within the meaning of contemplated by this Section 6662 of the Code) and shall provide opinions to that effect to both the Company and Executive5.2.

SECTION 4999 EXCISE TAX. (a) If The Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any paymentspayment received under the Agreement, rights including, without limitation, any Excise Tax; provided, however, that any payment or benefits benefit received or to be received by the Executive in connection with a Change in Control or the termination of employment (whether pursuant to payable under the terms of this the Agreement or any other plan, arrangement or agreement of Executive with the Company or with any person affiliated with an affiliate (collectively, the Company and whether or not "Payments") that would constitute a "parachute payment" within the Executive’s employment has then terminated (meaning of Section 280G of the “Payments”)) received or Code, shall be reduced to be received by Executive will the extent necessary so that no portion thereof shall be subject to the Excise Tax but only if, by reason of such reduction, the net after-tax benefit received by the Executive shall exceed the net after-tax benefit that would be received by the Executive if no such reduction was made. For purposes of this Section: (a) The "net after-tax benefit" shall mean (i) the “Excise Tax”) imposed by Payments which the Executive receives or is then entitled to receive from the Company or its affiliates that would constitute "parachute payments" within the meaning of Section 4999 280G of the Code Code, less (or any similar tax that may hereafter be imposed), then, except as set forth in Section 5.2(bii) below, the Company shall pay to Executive an amount in addition to the Payments (the “Gross-Up Payment”) as calculated below. The Gross-Up Payment shall be in an amount such that, after deduction of any Excise Tax on the Payments and any all federal, state and local income and employment tax and Excise Tax on the Gross-Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained taxes payable by the Executive with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be equal paid to the PaymentsExecutive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to the payments and benefits described in (i) above. (b) Notwithstanding anything in All determinations under this Agreement to the contrary, if the amount of Payments that Section will be subject to the Excise Tax does not exceed the amount of Payments made by an accounting firm or law firm that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000, then Executive’s taxable cash-based benefits under is selected for this Agreement will first be reduced in the order selected by Executive, and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as a “parachute payment” as defined in Treasury Regulations promulgated under Section 280G of the Code and IRS revenue rulings, revenue procedures and other official guidance) shall be reduced in the order selected by Executive, and then any other Payments shall be reduced as reasonably determined purpose by the Company, ’s Chief Executive Officer prior to the extent necessary to avoid imposition Change in Control (the "280G Firm"). All fees and expenses of the Excise Tax. If Executive does not select the amount to 280G Firm shall be reduced within the time prescribed borne by the Company, . The Company will direct the reductions specified herein shall be made by 280G Firm to submit any determination it makes under this Section and detailed supporting calculations to the Executive and the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive itsoon as reasonably practicable. (c) If the 280G Firm determines that one or more reductions are required under this Section, the 280G Firm shall also determine which Payments shall be reduced (first from cash payments and then from non-cash benefits) to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to the Executive. The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to 280G Firm shall make reductions required under this Section 5.2 are set forth in Appendix A attached hereto. For purposes a manner that maximizes the net after-tax amount payable to the Executive. (d) As a result of making the determinations and calculations required herein, the Consultant may rely on reasonable, good faith interpretations concerning uncertainty in the application of Section 280G at the time that the 280G Firm makes its determinations under this Section, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed (collectively, the "Overpayments"), or that additional amounts should be paid or distributed to the Executive (collectively, the "Underpayments"). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the 280G Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay the Overpayment to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Section 4999 of the Code or generate a refund of tax imposed under Section 4999 of the Code. If the 280G Firm determines, provided based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Consultant shall make such 280G Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company. (e) The parties will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations on the basis of “substantial authority” (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to both the Company and Executivecontemplated by this Section.”

SECTION 4999 EXCISE TAX. (a) If In the event that it shall be determined that any paymentsbenefit provided or payment made by the Company to or for the benefit of Executive, rights whether paid or benefits (whether payable or distributed or distributable pursuant to the terms of this Agreement or any other an agreement, plan, program, arrangement or agreement of Executive with the Company or with any person affiliated with the Company and whether or not the Executive’s employment has then terminated otherwise (the a “PaymentsPayment”)) received or , would subject Executive to be received by Executive will be subject an obligation to the pay an excise tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar interest or penalties related to such excise tax that may hereafter be imposed(such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then, except as set forth in Section 5.2(b) below, the Company then Executive shall pay be entitled to Executive receive an amount in addition to the Payments additional payment (the a “Gross-Up Payment”) as calculated below. The in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment shall be in an amount such that, after deduction of any equal to the Excise Tax on imposed upon the Payments Payments. For purposes of clarification and any without limiting the effect of the foregoing, it is intended that Executive should be responsible for regular federal, state and local income and employment tax taxes and for any taxes incurred under Section 409A of the Code with respect to any Payment to which this Section 7 applies. Subject to the provisions below, all determinations required to be made with respect to Executive, including whether a Gross- Up Payment is required and the amount of such Gross-Up Payment and the assumptions not specified herein to be used in arriving at such determinations, shall be made by a nationally recognized accounting firm proposed by the Company and reasonably acceptable to Executive (the “Firm”). In making such determination with respect to any matter that is uncertain, the Firm shall adopt the position that it believes more likely than not would be adopted by the Internal Revenue Service (“IRS”). The Firm shall provide detailed supporting calculations with respect to its determination both to the Company and Executive. All fees and expenses of the Firm shall be borne by the Company. If the Firm determines that no Excise Tax is payable by Executive it shall furnish Executive with a written opinion that failure to report the Excise Tax on Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Firm shall be final, binding and conclusive upon the Company and Executive, except as provided in the following sentences of this paragraph (b). As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or that Gross-Up Payments which have been made by the Company should not have been made (“Excess Gross-Up Payment”). An Underpayment or Excess Gross-Up Payment can result from a claim by the IRS or from a redetermination by the Firm. In the event that: (i) the IRS makes a claim and the Company exhausts its right to contest set out below and Executive thereafter is required to make a payment of any Excise Tax, the Firm shall promptly determine the amount of the Underpayment and such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. (ii) the Firm determines that an Underpayment has occurred, the Firm shall promptly determine the amount of the Underpayment, which shall be promptly paid by the Company to or for the benefit of Executive together with a Gross-Up Payment with respect to such Underpayment determined in accordance with the first paragraph of this Section 7(b) hereof in the same manner as if the Underpayment had originally been paid pursuant to such first paragraph of this Section 7(b). (iii) if the IRS makes an Excess Gross-Up Payment determination, or the Firm makes such determination and furnishes Executive with a written opinion that the basis for its determination would be accepted by the IRS, Executive shall promptly repay to the Company an amount equal to the reduction in aggregate taxes due by Executive resulting from such determination by the IRS or the Firm, provided that Executive shall only be required to repay any portion of such amount that had been paid to the IRS to the extent that and when Executive receives a refund from the IRS (or is entitled and able to utilize such amount as a credit against other taxes due). Executive shall notify the Company in writing of any claim (including the nature and other details of such claim) by the IRS that, if successful, would require the payment by the Company of a Gross-Up Payment, but before deduction within 10 days of such notice. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) Give the Company any information reasonably requested by the Company relating to such claim, (ii) Take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) Cooperate with the Company in good faith in order effectively to contest such claim, and (iv) Permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay all costs and expenses incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any federaltaxes, state including, without limitation, any Excise Tax or local income tax, including interest and employment tax penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the Paymentsforegoing provisions, the net Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount retained by of such payment to Executive, on an interest-free basis and shall indemnify and hold Executive harmless, on an aftertax basis, from any taxes, including, without limitation, any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be equal entitled to settle or contest, as the case may be, any other issue raised by the IRS or any other taxing authority. Any payment pursuant to this Section shall be paid on the same grossed-up basis as provided in the first paragraph of this Section 7(b) hereof, and shall reflect all taxes referred to in such paragraph of this Section 7(b). If, after the receipt by Executive of an amount advanced by the Company pursuant to the Payments. above paragraph, Executive becomes entitled to receive any refund with respect to such claim, Executive shall (b) Notwithstanding anything in this Agreement subject to the contrary, if Company’s complying with the requirements of such paragraph) promptly pay to the Company the amount of Payments that will be subject such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to the Excise Tax above paragraph, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not exceed notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of Payments that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000, then Executive’s taxable cash-based benefits under this Agreement will first be reduced in the order selected by Executive, and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as a “parachute payment” as defined in Treasury Regulations promulgated under Section 280G of the Code and IRS revenue rulings, revenue procedures and other official guidance) advance shall be reduced in the order selected by Executive, and then any other Payments shall be reduced as reasonably determined by the Companyoffset, to the extent necessary to avoid imposition of the Excise Tax. If Executive does not select the amount to be reduced within the time prescribed by the Companythereof, the reductions specified herein shall be made by the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive it. (c) The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating required to this Section 5.2 are set forth in Appendix A attached hereto. For purposes of making the determinations and calculations required herein, the Consultant may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code, provided that the Consultant shall make such determinations and calculations on the basis of “substantial authority” (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to both the Company and Executivebe paid.

SECTION 4999 EXCISE TAX. (a) If any payments, rights or benefits (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement of Executive with the Company or with any person affiliated with the Company and whether or not the Executive’s employment has then terminated Company) (the “Payments”)) received or to be received by Executive will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any similar tax that may hereafter be imposed), then, except as set forth in Section 5.2(b10(b) below, the Company shall pay to Executive an amount in addition to the Payments (the “Gross-Up Payment”) as calculated below. The Gross-Gross Up Payment shall be in an amount such that, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment tax and Excise Tax on the Gross-Gross Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained by the Executive shall be equal to the Payments. (b) Notwithstanding anything in this Agreement to the contrary, if the amount of Payments that will be subject to the Excise Tax does not exceed four times the amount “Base Amount” (as defined in Section 280G(d)(2) of Payments that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000Code), then Executive’s taxable cash-based benefits under this Agreement will first be reduced in the order selected by Executive, and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as a “parachute payment” as defined in Treasury Regulations promulgated under Section 280G of the Code and IRS revenue rulings, revenue procedures and other official guidance) shall be reduced in the order selected by Executive, and then any other Payments shall be reduced as reasonably determined by the Company, to the extent necessary to avoid imposition of the Excise Tax. If Executive does not select the amount to be reduced within the time prescribed by the Company, the reductions specified herein shall be made by the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive it. (c) The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to this Section 5.2 10, including the time period for making the Gross-Up Payment, are set forth in Appendix A B attached hereto. For purposes of making the determinations and calculations required herein, the Consultant Accounting Firm (as defined in Appendix B) may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code, provided that the Consultant Accounting Firm shall make such determinations and calculations on the basis of “substantial authority” (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to both the Company and Executive.

SECTION 4999 EXCISE TAX. (a) If any payments, rights or benefits (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement of Executive with the Company or with any person affiliated with the Company and whether or not the Executive’s employment has then terminated Company) (the “Payments”)) received or to be received by Executive will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), then, except as set forth in Section 5.2(b10(b) below, the Company shall pay to Executive an amount in addition to the Payments (the “Gross-Up Payment”) as calculated below. The Gross-Gross Up Payment shall be in an amount such that, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment tax and Excise Tax on the Gross-Gross Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained by the Executive shall be equal to the Payments. (b) Notwithstanding anything in this Agreement to the contrary, if the amount of Payments that will be subject to the Excise Tax does not exceed the amount of Payments that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000, then Executive’s taxable cash-based benefits under this Agreement will first be reduced in the order selected by Executive, and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as a “parachute payment” as defined in Treasury Regulations promulgated under Section 280G of the Code and IRS revenue rulings, revenue procedures and other official guidance) shall be reduced in the order selected by Executive, and then any other Payments shall be reduced as reasonably determined by the Company, to the extent necessary to avoid imposition of the Excise Tax. If Executive does not select the amount to be reduced within the time prescribed by the Company, the reductions specified herein shall be made by the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive it. (c) The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to this Section 5.2 10 are set forth in Appendix A B attached hereto. For purposes of making the determinations and calculations required herein, the Consultant Accounting Firm (as defined in Appendix B) may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code, provided that the Consultant Accounting Firm shall make such determinations and calculations on the basis of “substantial authority” (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to both the Company and Executive.

SECTION 4999 EXCISE TAX. (a) If any payments, rights or benefits (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement of Executive with the Company or with any person affiliated with the Company and Companyand whether or not the Executive’s employment has then terminated (the “Payments”)) received or to be received by Executive will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), then, except as set forth in Section 5.2(b) below, the Company shall pay to Executive an amount in addition to the Payments (the “Gross-Up Payment”) as calculated below. The Gross-Up Payment shall be in an amount such that, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment tax and Excise Tax on the Gross-Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained by the Executive shall be equal to the Payments. (b) Notwithstanding anything in this Agreement to the contrary, if the amount of Payments that will be subject to the Excise Tax does not exceed the amount of Payments that Executive could receive without having any Payments become subject to the Excise Tax by at least $100,000, then Executive’s taxable cash-based benefits under this Agreement will first be reduced in the order selected by Executive, and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as a “parachute payment” as defined in Treasury Regulations promulgated under Section 280G of the Code and IRS revenue rulings, revenue procedures and other official guidance) shall be reduced in the order selected by Executive, and then any other Payments shall be reduced as reasonably determined by the Company, to the extent necessary to avoid imposition of the Excise Tax. If Executive does not select the amount to be reduced within the time prescribed by the Company, the reductions specified herein shall be made by the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive it. (c) The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to this Section 5.2 are set forth in Appendix A attached hereto. For purposes of making the determinations and calculations required herein, the Consultant may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code, provided that the Consultant shall make such determinations and calculations on the basis of “substantial authority” (within the meaning of Section 6662 of the Code) and shall provide opinions to that effect to both the Company and Executive.

SECTION 4999 EXCISE TAX. (a) If Notwithstanding any paymentscontrary provisions in any plan, rights program or policy of the Company, if all or any portion of the benefits (whether pursuant payable under this Employment Agreement, either alone or together with other payments and benefits that the Executive receives or is entitled to receive from the Company, would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Company shall reduce the Executive's payments and benefits payable under this Employment Agreement to the terms of this Agreement or any other plan, arrangement or agreement of Executive with the Company or with any person affiliated with the Company and whether or not the Executive’s employment has then terminated (the “Payments”)) received or to be received by Executive will extent necessary so that no portion thereof shall be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code Code, but only if, by reason of such reduction, the net after-tax benefit to the Executive shall exceed the net after-tax benefit if such reduction were not made. “Net after-tax benefit” for these purposes shall mean the sum of (i) the total amount payable to the Executive under this Employment Agreement, plus (ii) all other payments and benefits which the Executive receives or any similar is then entitled to receive from the Company that, alone or in combination with the payments and benefits payable under this Employment Agreement, would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) the amount of federal income taxes payable with respect to the foregoing calculated at the maximum marginal income tax that may hereafter rate for each year in which the foregoing shall be imposed), then, except paid to the Executive (based upon the rate in effect for such year as set forth in Section 5.2(bthe Code at the time of the payment under this Employment Agreement), less (iv) below, the Company shall pay to Executive an amount in addition of excise taxes imposed with respect to the Payments payments and benefits described in (i) and (ii) above by Section 4999 of the “Gross-Up Payment”) as calculated belowCode. The Gross-Up Payment parachute payments reduced shall be in an amount such that, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment tax and Excise Tax on the Gross-Up Payment, but before deduction for any federal, state or local income and employment tax on the Payments, the net amount retained by those that provide the Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be equal reduced pro rata; provided, however, that the Executive may elect to have the Paymentsnoncash payments and benefits due the Executive reduced (or eliminated) prior to any reduction of the cash payments due under this Employment Agreement. (b) Notwithstanding anything in All determinations required to be made under this Agreement Paragraph 9 shall be made by tax counsel reasonably acceptable to the contrary, if Executive and the amount of Payments that will be subject Company or any other third party acceptable to the Excise Executive and the Company (the “Tax does not exceed the amount of Payments that Executive could receive without having any Payments become subject Counsel”). The Tax Counsel shall provide detailed supporting calculations both to the Excise Company and the Executive. All fees and expenses of the Tax Counsel shall be borne solely by at least $100,000the Company. Absent manifest error, then any determination by the Tax Counsel shall be binding upon the Company and the Executive’s taxable cash-based benefits under this Agreement will first be reduced in . (c) For purposes of determining whether and the order selected by Executive, and then, if necessary, Executive’s equity-based compensation (based on the value of such equity-based compensation as extent to which any payments would constitute a “parachute payment” (i) no portion of any payments or benefits that the Participant shall have waived at such time and in such manner as defined in Treasury Regulations promulgated under Section 280G not to constitute a “payment” within the meaning of section 280G(b) of the Code and IRS revenue rulings, revenue procedures and other official guidance) shall be reduced taken into account, (ii) no portion of the payments shall be taken into account which, in the order selected opinion of Tax Counsel, does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code (including by Executivereason of section 280G(b)(4)(A) of the Code) and, and then any other Payments in calculating the excise tax, no portion of such payments shall be reduced as reasonably determined by taken into account which, in the Companyopinion of Tax Counsel, to the extent necessary to avoid imposition of the Excise Tax. If Executive does not select the amount to be reduced constitutes reasonable compensation for services actually rendered, within the time prescribed by the Company, the reductions specified herein shall be made by the Company in its sole discretion from such compensation as it shall determine. Any amount so reduced shall be irrevocably forfeited and Executive shall have no further rights to receive it. (cmeaning of section 280G(b)(4)(B) The process for calculating the Excise Tax, determining the amount of any Gross-Up Payment and other procedures relating to this Section 5.2 are set forth in Appendix A attached hereto. For purposes of making the determinations and calculations required herein, the Consultant may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code, provided that in excess of the Consultant shall make such determinations and calculations on the basis of “substantial authoritybase amount” (within the meaning of Section 6662 set forth in section 280G(b)(3) of the Code) allocable to such reasonable compensation, and (iii) the value of any noncash benefit or any deferred payment or benefit included in the payments shall provide opinions to that effect to both be determined by the Company Tax Counsel in accordance with the principles of sections 280G(d)(3) and Executive(4) of the Code.