you will not be entitled to severance benefits in the event of your termination of employment for any reason during the three-year period following the Effective Date and in order to comply with applicable federal securities laws, the Company terminated, pursuant to the approval by the Board and effective on August 18, 2021 (the “Loan Cancellation Date”) that certain Amended and Restated Term Loan Agreement between you and the Company, dated September 21, 2018, as amended (the “Loan Agreement”), and all principal and interest amounts owing by you under such Loan Agreement and the Term Note dated August 27, 2018, equal to an amount of $17,673,043.22, have been cancelled and discharged in full and all other obligations of you, and rights of the Company, under the Loan Agreement and the corresponding Pledge and Security Agreement between you and the Company, dated August 27, 2018, were terminated as of the Loan Cancellation Date. You acknowledge and agree that you are solely responsible for all income and withholding taxes (other than employer-paid payroll taxes) in relation to the cancellation and discharge of your obligations under the Loan Agreement and shall promptly pay to the Company all such withholding taxes.
7. Internal Revenue Code Section 280G
(a) Notwithstanding anything to the contrary contained in this offer letter, to the extent that any amount, equity awards or benefits paid or distributed to you pursuant to this offer letter or any other agreement, plan or arrangement between the Company or its subsidiaries or affiliates, on the one hand, and you on the other hand (collectively, the “280G Payments”) (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this provision would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the 280G Payments shall be payable either (a) in full, notwithstanding that some or all portion of such payment may be subject to the Excise Tax or (b) in such lesser amount that would result in no portion of such 280G Payments being subject to Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income or excise taxes (including the Excise Tax) results in your receipt on an after-tax basis, of the greatest amount or benefits under this offer letter, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code.
(b) Unless otherwise agreed between the parties (and in all cases subject to compliance with Code Section 409A), payments shall be reduced in the following order (i) any severance payment based on multiple of base salary and/or annual bonus; (ii) any pro rata bonus paid as severance; (iii) any other cash payments, (iv) acceleration of vesting of equity awards not subject to Q/A-24(c) of Treasury Regulation 1.280G-1; and (v) acceleration of vesting of equity awards subject to Q/A-24(c) of Treasury Regulation 1.280G-1; provided that, within any category, reductions shall be made on a pro rata basis.
(c) All determinations required to be made under this Section 7 shall be made by a nationally recognized certified public accounting or consulting firm as may be designated by the Company and reasonably acceptable to you (such acceptance not to be unreasonably withheld, conditioned or delayed) (the “280G Advisor”), which 280G Advisor shall provide detailed supporting calculations both to the Company and you within fifteen (15) business days of the receipt of notice from the Company that there is or may be made a 280G Payment. All fees and expenses of the 280G Advisor shall be borne solely by the Company.