Common use of Treatment of Parachute Payments Clause in Contracts

Treatment of Parachute Payments. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its Affiliates, would result in a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (A) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (B) paid in full, whichever of (A) or (B) produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code, if any.

Treatment of Parachute Payments. (a) Notwithstanding anything to the contrary in any other provisions of this Agreement, if Employee and except as set forth below, in the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called “Total Payments”) is a determined to be an “disqualified individualexcess parachute payment” pursuant to Section 280G of the Internal Revenue Code of 1986, as amended (as defined in Section 280G(c) the “Code”), or any successor or substitute provision of the Code, with the effect that Executive is liable for the payment of the excise tax described in Code Section 4999 or any successor or substitute provision of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the cash payments provided in Section 7(e)(ii) of this Agreement shall first be reduced, and the noncash payments and benefits provided for in this Agreementshall thereafter be reduced, together with any other payments and benefits which Employee has to the right to receive from the Company or any of its Affiliates, would result in a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (A) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and extent necessary so that no portion of such amounts and benefits received by Employee shall be the Total Payments is subject to the excise tax imposed by Section 4999 Excise Tax; provided, however, that Executive may elect (at any time prior to the payment of any Total Payment under this Agreement) to have the noncash payments and benefits reduced (or eliminated) prior to any reduction of the Code cash payments under this Agreement. Notwithstanding the foregoing, payments or benefits under this Agreement will not be reduced unless: (Bi) paid in fullthe net amount of the Total Payments, whichever as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than (ii) the difference of (A) or the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), minus (B) produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of Excise Tax to which the payments and benefits provided hereunder is necessary shall Executive would be made by the Company subject in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay respect of such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code, if anyunreduced Total Payments.

Treatment of Parachute Payments. Notwithstanding anything (a) In the event that it shall be determined (as hereafter provided) that any payment by the Company to or for the benefit of [Executive/Employee], whether paid or payable pursuant to the contrary in terms of this AgreementAgreement or otherwise pursuant to or by reason of any other agreement, if Employee is policy, plan, program or arrangement, including without limitation any stock option, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (collectively, a “disqualified individual” (as defined in Section 280G(c) of the CodePayment”), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its Affiliates, would result in a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (A) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code (or (Bany successor provision thereto) paid by reason of being considered “contingent on a change in fullownership or control” of the Company, whichever within the meaning of (A) or (B) produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and any other applicable taxespenalties, being hereafter collectively referred to as the “Excise Tax”). The reduction , then the amount of the cash Severance Benefits payable to [Executive/Employee] hereunder shall be reduced and then the noncash payments and benefits hereunder, if applicable, hereunder shall be made by reducingreduced, firstto the extent necessary so that no portion of the Payments is subject to the Excise Tax; provided, however, that [Executive/Employee] may elect (at any time prior to the payment of any Payments under this Agreement) to have the noncash payments and benefits reduced (or eliminated) prior to any reduction of the cash payments under this Agreement. Notwithstanding the foregoing, payments or benefits to under this Agreement will not be paid in cash hereunder in reduced unless: (i) the order in which net amount of the Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such payment or benefit would be paid or provided reduced Payments) is greater than (beginning with ii) (A) the net amount of such payment or benefit that would be made last in time Payments, without reduction (but after subtracting the net amount of federal, state and continuinglocal income taxes on such Payments), to the extent necessary, through to such payment or benefit that would be made first in timeminus (B) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall Excise Tax to which [Executive/Employee] would be made by the Company subject in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay respect of such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code, if anyunreduced Payments.

Treatment of Parachute Payments. Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its Affiliates, would result in a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (A) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code doc.mmb/1465.doc or (B) paid in full, whichever of (A) or (B) produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code, if any.

Treatment of Parachute Payments. (a) Notwithstanding anything to the contrary in any other provisions of this Agreement, if Employee is a “disqualified individual” (and except as defined set forth below, in Section 280G(c) the event that any payment or benefit received or to be received by Executive in connection with the Acquisition, or other Change in Control of the Code), and Company or termination of Executive’s employment (whether pursuant to the payments and benefits provided for in terms of this Agreement, together with Agreement or any other payments and benefits which Employee has the right to receive from plan, arrangement or agreement with the Company or any subsidiary of its Affiliates, would result in a the Company (all such payments and benefits being herein after called “Total Payments”) is determined to be an “excess parachute payment” pursuant to Section 280G of the Internal Revenue Code of 1986, as amended (as defined in Section 280G(b)(2the “Code”) or any successor or substitute provision of the Code, with the effect that Executive is liable for the payment of an excise tax described in Code Section 49999 or any successor or substitute provision of the Code (the “Excise Tax”), then then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the cash payments provided in Section 6(b) of this Agreement shall first be reduced, and the noncash payments and benefits provided for in this Agreement shall thereafter be either (A) reduced (but not below zero) so that to the present value of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and extent necessary so that no portion of such amounts and benefits received by Employee shall be the Total Payments is subject to the excise tax imposed by Section 4999 Excise Tax; provided, however, that Executive may elect (at anytime prior to the payment of any Total Payment under this Agreement) to have the noncash payments and benefits reduced (or eliminated) prior to any reduction of the Code cash payments under this Agreement. Notwithstanding the foregoing, payments or benefits under this Agreement will not be reduced unless: (Bi) paid in fullthe net amount of the Total Payments, whichever as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than (ii) the difference of (A) or the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), minus (B) produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of Excise Tax to which the payments and benefits provided hereunder is necessary shall Executive would be made by the Company subject in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay respect of such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code, if anyunreduced Total Payments.

Treatment of Parachute Payments. (a) Notwithstanding anything to the contrary in any other provisions of this Agreement, if Employee and except as set forth below, in the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Gunite or the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") is a “disqualified individual” determined to be an "excess parachute payment" pursuant to Section 280G of the Internal Revenue Code of 1986, as amended (as defined in Section 280G(c) the "Code"), or any successor or substitute provision of the Code, with the effect that Executive is liable for the payment of the excise tax described in Code Section 4999 or any successor or substitute provision of the Code (the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the cash payments provided in Section 7(d)(ii) of this Agreement shall first be reduced, and the noncash payments and benefits provided for in this Agreementshall thereafter be reduced, together with any other payments and benefits which Employee has to the right to receive from the Company or any of its Affiliates, would result in a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (A) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and extent necessary so that no portion of such amounts and benefits received by Employee shall be the Total Payments is subject to the excise tax imposed by Section 4999 Excise Tax; provided, however, that Executive may elect (at any time prior to the payment of any Total Payment under this Agreement) to have the noncash payments and benefits reduced (or eliminated) prior to any reduction of the Code or cash payments under this Agreement. NOTWITHSTANDING THE FOREGOING, PAYMENTS OR BENEFITS UNDER THIS AGREEMENT WILL NOT be reduced unless: (Bi) paid in fullthe net amount of the Total Payments, whichever as so reduced (and after subtracting the net amount of federal, state and local INCOME TAXES ON SUCH REDUCED TOTAL PAYMENTS) IS GREATER than (ii) the difference of (A) or the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), minus (B) produces the better net after-tax position amount of Excise Tax to Employee (taking into account any applicable excise tax which the Executive would be subject in respect of such unreduced Total Payments.(b) All determinations required to be made under this Section 4999 of 8, and the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicableassumptions to be utilized in arriving at such determination, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made certified public accounting firm used for auditing purposes by the Company immediately prior to the Date of Termination (the "Accounting Firm"), which shall provide detailed supporting calculations both to each of Gunite, the Company and the Executive not later than 5 days prior to the Date of Termination. The Company shall pay all fees and expenses of the Accounting Firm. Any determination by the Accounting Firm shall be binding upon Gunite, the Company and the Executive, except as provided in good faithparagraph (c) below.(c) As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Internal Revenue Service ("IRS") or other agency will claim that an Excise Tax, or a greater Excise Tax, is due. If the Executive is required to make a reduced payment of any such Excise Tax, Gunite will promptly pay the Executive an additional amount equal to the amount, or benefit greater amount, of Excise Tax the Executive is made required to pay (plus a gross up payment for any income taxes, interest, penalties or provided additional Excise Tax payable by Executive with respect to such Excise Tax or additional payment), as determined by the Accounting Firm. Executive will notify Gunite and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (in writing of any claim by the IRS or its Affiliates) used other agency that, if successful, would require payment by Gunite of the additional payments under this paragraph. The Executive, Gunite and the Company shall each reasonably cooperate with the other in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Company upon notification that an overpayment has been madeTotal Payments. Nothing in this Section 5(e) Gunite shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 pay all fees and expenses of the Code, if anyExecutive relating to a claim by the IRS or other AGENCY.9.

Treatment of Parachute Payments. Notwithstanding anything (a) In the event that it shall be determined (as hereafter provided) that any payment by the Company to or for the benefit of Employee, whether paid or payable pursuant to the contrary in terms of this AgreementAgreement or otherwise pursuant to or by reason of any other agreement, if Employee is policy, plan, program or arrangement, including without limitation any stock option, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (collectively, a “disqualified individual” (as defined in Section 280G(c) of the CodePayment”), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its Affiliates, would result in a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (A) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being considered “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (By) paid in fullthe largest portion, up to and including the total, of the Payment, whichever of amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (A) or (B) produces all computed at the better net highest applicable marginal rate), results in the Employee’s receipt, on an after-tax position to Employee (taking into account any applicable excise tax under Section 4999 basis, of the Code and any other applicable taxes)greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. The If a reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, in payments or benefits to be paid in cash hereunder constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit manner that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction results in the amount of greatest economic benefit for the payments and benefits provided hereunder is necessary shall be made by the Company in good faithEmployee. If a reduced payment or benefit is made or provided and through error or otherwise that payment or more than one method of reduction will result in the same economic benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5(e) shall require the Company to items so reduced will be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code, if anyreduced pro rata.

Treatment of Parachute Payments. Notwithstanding anything (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then the Executive shall be entitled to receive an additional payment (the “Gross-Up Payment”) in an amount such that, after payment by the Executive of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Code, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this AgreementSection 6(a), if Employee it shall be determined that the Executive is a “disqualified individual” entitled to the Gross-Up Payment, but that the Parachute Value of all Payments is less than one hundred ten percent (as defined in Section 280G(c110%) of the Code)Safe Harbor Amount, then no Gross-Up Payment shall be made to the Executive and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its Affiliates, would result in a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in amounts payable under this Agreement shall be either (A) reduced (but not below zero) so that the present value Parachute Value of such total amounts and benefits received by Employee from all Payments, in the Company and its Affiliates will be one dollar aggregate, equals the Safe Harbor Amount ($1.00) less than three times Employee’s the “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (B) paid in full, whichever of (A) or (B) produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxesCapped Benefit”). The reduction of payments and benefits the amounts payable hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments under Section 3(a)(1), unless an alternative method of reduction is elected by the Executive (provided, however, that such election shall be subject to approval by the Company if made on or after the date on which the event that triggers the relevant Payment occurs), and benefits provided hereunder is necessary in any event shall be made by in such a manner as to maximize the Company in good faithValue of all Payments actually made to the Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amount payable under this Agreement would not result in a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from reduction of the Company (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess Parachute Value of all Payments to the Company upon notification that an overpayment has been made. Nothing in Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 5(e) 6(a). The Company’s obligation to make Gross-Up Payments under this Section 6 shall require not be conditioned on the Company to be responsible for, or have any liability or obligation with respect to, EmployeeExecutive’s excise tax liabilities under Section 4999 termination of the Code, if anyemployment.

Treatment of Parachute Payments. (a) Notwithstanding anything to the contrary in any other provisions of this Agreement, if Employee and except as set forth below, in the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called “Total Payments”) is a determined to be an “disqualified individualexcess parachute payment” pursuant to Section 280G of the Internal Revenue Code of 1986, as amended (as defined in Section 280G(c) the “Code”), or any successor or substitute provision of the Code, with the effect that Executive is liable for the payment of the excise tax described in Code Section 4999 or any successor or substitute provision of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the cash payments provided in Section 7(e)(ii) of this Agreement shall first be reduced, and the noncash payments and benefits provided for in this Agreementshall thereafter be reduced, together with any other payments and benefits which Employee has to the right to receive from the Company or any of its Affiliates, would result in a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (A) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and extent necessary so that no portion of such amounts and benefits received by Employee shall be the Total Payments is subject to the excise tax imposed by Section 4999 Excise Tax; provided, however, that Executive may elect (at any time prior to the payment of any Total Payment under this Agreement) to have the noncash payments and benefits reduced (or eliminated) prior to any reduction of the Code cash payments under this Agreement. Not withstanding the foregoing, payments or benefits under this Agreement will not be reduced unless: (Bi) paid in fullthe net amount of the Total Payments, whichever as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than (ii) the difference of (A) or the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), minus (B) produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of Excise Tax to which the payments and benefits provided hereunder is necessary shall Executive would be made by the Company subject in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay respect of such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code, if anyunreduced Total Payments.

Treatment of Parachute Payments. (a) Notwithstanding anything to the contrary in any other provisions of this Agreement, if Employee is in the event that any payment or benefit received or to be received by the Executive in connection with a “disqualified individual” (as defined Change in Section 280G(c) Control or the termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being herein-after called "Total Payments") would not be deductible (in whole or part), by the Company, an affiliate or Person making such payment or providing such benefit as a result of section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement), (A) the cash Severance Payments shall first be reduced (if necessary, to zero), and (B) all other non-cash Severance Payments shall next be reduced (if necessary, to zero). For purposes of this limitation (i) no portion of the payments and benefits provided for Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in this Agreementwriting prior to the Date of Termination shall be taken into account, together with any other payments and benefits (ii) no portion of the Total Payments shall be taken into account which Employee has in the right to receive from opinion of tax counsel selected by the Company or any of its Affiliates, would result in Company's independent auditors does not constitute a “"parachute payment” (as defined in Section " within the meaning of section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (A) reduced (but not below zero) so that the present value including by reason of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3section 280G(b)(4)(A) of the Code, (iii) and the Severance Payments shall be reduced only to the extent necessary so that no portion the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 section 280G(b)(4)(B) of the Code or (B) paid are otherwise not subject to disallowance as deductions, in full, whichever of (A) or (B) produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 opinion of the Code tax counsel referred to in clause (ii); and (iv) the value of any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments non-cash benefit or benefits to be paid in cash hereunder in the order in which such any deferred payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction included in the amount of the payments and benefits provided hereunder is necessary Total Payments shall be made determined by the Company Company's independent auditors in good faith. If a reduced payment or benefit is made or provided accordance with the principles of sections 280G(d)(3) and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates4) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code, if any.

Treatment of Parachute Payments. Notwithstanding anything (a) In the event that it shall be determined (as hereafter provided) that any payment by the Company to or for the benefit of Executive, whether paid or payable pursuant to the contrary in terms of this AgreementAgreement or otherwise pursuant to or by reason of any other agreement, if Employee is policy, plan, program or arrangement, including without limitation any stock option, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (collectively, a “disqualified individual” (as defined in Section 280G(c) of the CodePayment”), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from the Company or any of its Affiliates, would result in a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (A) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code (or (Bany successor provision thereto) paid by reason of being considered “contingent on a change in fullownership or control” of the Company, whichever within the meaning of (A) or (B) produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and any other applicable taxespenalties, being hereafter collectively referred to as the “Excise Tax”). The reduction , then the amount of the cash Severance Benefits payable to Executive hereunder shall be reduced and then the noncash payments and benefits hereunder, if applicable, hereunder shall be made by reducingreduced, firstto the extent necessary so that no portion of the Payments is subject to the Excise Tax; provided, however, that Executive may elect (at any time prior to the payment of any Payments under this Agreement) to have the noncash payments and benefits reduced (or eliminated) prior to any reduction of the cash payments under this Agreement. Notwithstanding the foregoing, payments or benefits to under this Agreement will not be paid in cash hereunder in reduced unless: (i) the order in which net amount of the Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such payment or benefit would be paid or provided reduced Payments) is greater than (beginning with ii) (A) the net amount of such payment or benefit that would be made last in time Payments, without reduction (but after subtracting the net amount of federal, state and continuinglocal income taxes on such Payments), to the extent necessary, through to such payment or benefit that would be made first in timeminus (B) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall Excise Tax to which Executive would be made by the Company subject in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay respect of such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code, if anyunreduced Payments.

Treatment of Parachute Payments. (a) Notwithstanding anything to the contrary in any other provisions of this Agreement, if Employee is a “disqualified individual” (and except as defined set forth below, in Section 280G(c) the event that any payment or benefit received or to be received by Executive in connection with the Acquisition, or other Change in Control of the Code), and Company or termination of Executive’s employment (whether pursuant to the payments and benefits provided for in terms of this Agreement, together with Agreement or any other payments and benefits which Employee has the right to receive from plan, arrangement or agreement with the Company or any subsidiary of its Affiliates, would result in a the Company (all such payments and benefits being herein after called “Total Payments”) is determined to be an “excess parachute payment” pursuant to Section 280G of the Internal Revenue Code of 1986, as amended (as defined in Section 280G(b)(2the “Code”) or any successor or substitute provision of the Code, with the effect that Executive is liable for the payment of an excise tax described in Code Section 4999 or any successor or substitute provision of the Code (the “Excise Tax”), then then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the cash payments provided in Section 6(a) of this Agreement shall first be reduced, and the noncash payments and benefits provided for in this Agreement shall thereafter be either (A) reduced (but not below zero) so that to the present value of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and extent necessary so that no portion of such amounts and benefits received by Employee shall be the Total Payments is subject to the excise tax imposed by Section 4999 Excise Tax; provided, however, that Executive may elect (at anytime prior to the payment of any Total Payment under this Agreement) to have the noncash payments and benefits reduced (or eliminated) prior to any reduction of the Code cash payments under this Agreement. Notwithstanding the foregoing, payments or benefits under this Agreement will not be reduced unless: (Bi) paid in fullthe net amount of the Total Payments, whichever as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than (ii) the difference of (A) or the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), minus (B) produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of Excise Tax to which the payments and benefits provided hereunder is necessary shall Executive would be made by the Company subject in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay respect of such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code, if anyunreduced Total Payments.

Treatment of Parachute Payments. Notwithstanding anything to the contrary in any other provisions of this Agreement, if Employee and except as set forth below, in the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") is a “disqualified individual” determined to be an "excess parachute payment" pursuant to Section 280G of the Internal Revenue Code of 1986, as amended (as defined in Section 280G(c) the "Code"), or any successor or substitute provision of the Code, with the effect that Executive is liable for the payment of the excise tax described in Code Section 4999 or any successor or substitute provision of the Code (the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the cash payments provided in Section 7(d)(ii) of this Agreement shall first be reduced, and the noncash payments and benefits provided for in this Agreementshall thereafter be reduced, together with any other payments and benefits which Employee has to the right to receive from the Company or any of its Affiliates, would result in a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (A) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company and its Affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and extent necessary so that no portion of such amounts and benefits received by Employee shall be the Total Payments is subject to the excise tax imposed by Section 4999 Excise Tax; provided, however, that Executive may elect (at any time prior to the payment of any Total Payment under this Agreement) to have the noncash payments and benefits reduced (or eliminated) prior to any reduction of the Code cash payments under this Agreement. Notwithstanding the foregoing, payments or benefits under this Agreement will NOT be reduced unless: (Bi) paid in fullthe net amount of the Total Payments, whichever as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) IS GREATER than (ii) the difference of (A) or the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), minus (B) produces the better net after-tax position to Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of Excise Tax to which the payments and benefits provided hereunder is necessary shall Executive would be made by the Company subject in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay respect of such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5(e) shall require the Company to be responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the Code, if anyunreduced Total Payments.