Common use of Certain Reduction of Payments by the Company Clause in Contracts

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder.

Certain Reduction of Payments by the Company. (a) a. Anything in this Agreement to the contrary notwithstanding, prior to the payment of any lump sum amount payable hereunder, the certified public accountants of the Company immediately prior to a Change of Control (the “Certified Public Accountants”) shall determine as promptly as practical and in any event within 20 business days following the event it shall be determined that termination of employment of Executive whether any payment or distribution by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a "“Payment"), ”) would more likely than not be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and if it is then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter thereinafter referred to as "“Agreement Payments"”) shall be reduced (but not below zero) to the reduced Amount. For purposes of this paragraph, the “Reduced Amount. The "Reduced Amount" ” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of said Section 280G of the Code. Anything to b. If under paragraph (a) of this section the contrary notwithstanding, if the Reduced Amount is zero and it is determined further Certified Public Accountants determine that any Payment which is would more likely than not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Executive may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount), and shall advise the Company in writing of his election within 20 business days of his receipt of notice. If no such election is made by the Executive within such 20-day period, the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the Aggregate present Value of the Agreement Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. For purposes of this Section 16paragraph, present value Value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid All determinations made by the Certified Public Accountants shall be binding upon the Company and Executive shall be made within 20 business days of a termination of employment of Executive. With the consent of the Executive, the Company may suspend part or all of the lump sum payment due under Section 9 hereof and any other payments due to the Executive hereunder until the Certified Public Accountants finish the determination and the Executive (or the Company, as the case may be) elect how to reduce the Agreement Payments, if necessary. As promptly as practicable following such determination and the elections hereunder, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement and shall promptly pay to or distribute for the benefit of Executive in the taxable year in which it was originally scheduled future such amounts as become due to be paid as Executive under this Agreement. c. As a result of the postponement thereof pursuant hereto uncertainty in the application of Section 280G of the Code, it is possible that Agreement Payments may have been made by the Company which should not have been made (“Overpayment”) or that additional Agreement Payments which will have not been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the Certified Public Accountants, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or Executive which said Certified Public Accountants believe has a high probability of success, determines that an Overpayment has been made, any such Overpayment shall be payable treated for all purposes as a loan to Executive which Executive shall repay to the Company together with interest at the applicable Federal rate provided for in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m7872(f)(2)(A) or 280G of the Code; provided, however, that all postponed payments no amount shall be placed payable by Executive to the Company in a Rabbi trust and for the extent such payment would not reduce the amount which is subject to taxation under Section 4999 of the Code. In the event that the Certified Public Accountants, based upon controlling precedent, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or similar vehicle for the benefit of the Executive together with interest at the applicable Federal rate provided for in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return Section 7872(f)(2)(A) of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loanCode. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder13.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in In the event that it shall be is determined that any payment or distribution by the Company to the Executive or for the benefit of the Executive’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option or restricted stock or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a "“Payment"”), would be nondeductible subject to the excise tax imposed by Section 4999 of the Company for Federal income tax purposes because Code (or any successor provision thereto), by reason of being considered “contingent on a change in the ownership or effective control” of the Company, within the meaning of Section 280G of the CodeCode (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 the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") Payment shall be reduced to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of in a manner determined by the Company to be $1.00 less than three (3) times the Executive’s base amount (as defined in Section 280G of the Code. Anything ) so that no portion of the Payment shall be subject to the contrary notwithstandingExcise Tax, if the Reduced Amount is zero and it is determined further provided that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income shall make such reduction only if such reduction would effect, on an after-tax purposes because of Section 280G basis, a Payment that is greater than the Payment that would be made if no such reduction were effected. The Executive shall be permitted to provide the Company with written notice specifying which of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also will be reduced (but not below zero) subject to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) reduction or 280G of the Codeelimination; provided, however, that all postponed payments to the extent that the Executive’s ability to exercise such authority would cause any Payment to become subject to any taxes or penalties pursuant to Section 409A, or if the Executive does not provide the Company with any such written notice, the Company shall be placed in a Rabbi trust reduce or similar vehicle for eliminate the benefit Payments by first reducing or eliminating the portion of the Executive Payments that are payable in such a way that cash and then by reducing or eliminating the amounts so transferred non-cash portion of the Payments, in each case in reverse order beginning with payments or benefits which are not taxable to such person or deductible be paid the farthest in time. Except as set forth in the preceding sentence, any notice given by the Company until payment from such vehicle Executive pursuant to the Executive is made. In preceding sentence shall take precedence over the event a payment has been made to provisions of any other plan, arrangement or agreement governing the Executive, but then disallowed as a deduction by the Internal Revenue Service ’s rights and return of the payment is required into the trust, said payment entitlements to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate any benefits or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereundercompensation.

Certain Reduction of Payments by the Company. If, notwithstanding such agreement and understanding of the parties, it is ultimately established, pursuant to a final determination of a court or an Internal Revenue Service proceeding which has been finally and conclusively resolved (ain any such case, a “Final Determination”), that some portion of the Termination Payment paid pursuant to Section 2 hereof constitutes an excess parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Manager and/or any of its service providers that are deemed to be disqualified individuals who received excess parachute payments under Section 280G of the Code (each, a “Recipient”) Anything in this Agreement shall be obligated to pay back to the contrary notwithstandingParent, as successor to the Company, or, if such Recipient is or was a service provider to the Manager, such Recipient shall be obligated to pay back to the Manager who shall, in turn, be obligated to pay such amounts received to Parent, as successor to the event it Company, a portion of such payments equal to the Repayment Amount within 30 days of such Final Determination. The “Repayment Amount” shall be determined the smallest such amount, if any, as shall be required to be repaid to the Parent, as successor to the Company, so that any such Recipient’s net after-tax proceeds (after taking into account the payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable excise tax imposed pursuant to Section 4999 of the terms Code (the “Excise Tax”) and all other taxes imposed on the Termination Payment) shall be maximized, and shall include interest at the applicable Federal rate, as determined under Section 1274 of the Code. If the Excise Tax is not eliminated pursuant to this Agreement or otherwise (a "Payment")Section 5, would be nondeductible by such Recipient shall pay the Company for Federal income tax purposes because applicable Excise Tax. Notwithstanding anything herein to the contrary, the Manager, the Recipients, the Company, and Parent, as successor to the Company, agree to work together and use commercially reasonable efforts to address any potential effects of Section 280G of the Code, then including, without limitation (and in the aggregate present value of amounts payable Manager’s discretion), engaging a third-party valuation expert to help demonstrate that any payments made or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because made to a Recipient should be considered “reasonable compensation” for purposes of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder.

Certain Reduction of Payments by the Company. (ad) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "“Payment"”), would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "“Agreement Payments"”) shall be reduced to the Reduced Amount. The "“Reduced Amount" ” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "“Payment"”), would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "“Agreement Payments"”) shall be reduced to the Reduced Amount. The "“Reduced Amount" ” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 165.9, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder.

Certain Reduction of Payments by the Company. (a) a. Anything in this Agreement to the contrary notwithstanding, prior to the payment of any lump sum amount payable hereunder, the certified public accountants of the Company immediately prior to a Change of Control (the “Certified Public Accountants”) shall determine as promptly as practical and in any event within 20 business days following the event it shall be determined that termination of employment of Executive whether any payment or distribution by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a "“Payment"), ”) would more likely than not be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and if it is then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter thereinafter referred to as "“Agreement Payments"”) shall be reduced (but not below zero) to the reduced Amount. For purposes of this paragraph, the “Reduced Amount. The "Reduced Amount" ” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of said Section 280G of the Code. Anything to b. If under paragraph (a) of this section the contrary notwithstanding, if the Reduced Amount is zero and it is determined further Certified Public Accountants determine that any Payment which is would more likely than not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Executive may then elect, in the Executive’s sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount), and shall advise the Company in writing of the election within 20 business days of the receipt of notice. If no such election is made by the Executive within such 20-day period, the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the Aggregate present Value of the Agreement Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. For purposes of this Section 16paragraph, present value Value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid All determinations made by the Certified Public Accountants shall be binding upon the Company and Executive shall be made within 20 business days of a termination of employment of Executive. With the consent of the Executive, the Company may suspend part or all of the lump sum payment due under Section 9 hereof and any other payments due to the Executive hereunder until the Certified Public Accountants finish the determination and the Executive (or the Company, as the case may be) elect how to reduce the Agreement Payments, if necessary. As promptly as practicable following such determination and the elections hereunder, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement and shall promptly pay to or distribute for the benefit of Executive in the taxable year in which it was originally scheduled future such amounts as become due to be paid as Executive under this Agreement. c. As a result of the postponement thereof pursuant hereto uncertainty in the application of Section 280G of the Code, it is possible that Agreement Payments may have been made by the Company which should not have been made (“Overpayment”) or that additional Agreement Payments which will have not been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the Certified Public Accountants, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or Executive which said Certified Public Accountants believe has a high probability of success, determines that an Overpayment has been made, any such Overpayment shall be payable treated for all purposes as a loan to Executive which Executive shall repay to the Company together with interest at the applicable Federal rate provided for in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m7872(f)(2)(A) or 280G of the Code; provided, however, that all postponed payments no amount shall be placed payable by Executive to the Company in a Rabbi trust and for the extent such payment would not reduce the amount which is subject to taxation under Section 4999 of the Code. In the event that the Certified Public Accountants, based upon controlling precedent, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or similar vehicle for the benefit of the Executive together with interest at the applicable Federal rate provided for in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return Section 7872(f)(2)(A) of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loanCode. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder13.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), ) would be nondeductible subject to the excise tax ("Excise Tax") imposed by the Company for Federal income tax purposes because of Section 280G section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to (but not below zero) if such reduction would result in the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes Executive retaining a larger amount, after-taxes, including the Excise Tax, than if the Executive received all of the Agreement Payments, and the aggregate present value of the Payments other than Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments ("Other Payments") shall also be reduced (but not below zero) to an if such reduction would result in the Executive retaining a larger amount expressed in present value which maximizes after taxes, including the aggregate present value Excise Tax, than if the Executive received all of Payments without causing any Payment the Other Payments. All determinations required to be nondeductible made under this Section 8 shall be made by the Company's independent auditors (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company because of Section 280G and the Executive within fifteen (15) business days of the CodeDate of Termination of employment of the Executive or such earlier time as is requested by the Company. For purposes Any such determination by the Accounting Firm shall be binding upon the Company and the Executive. The Executive shall determine which and how much of the Agreement Payments or Other Payments, as the case may be, shall be eliminated or reduced consistent with the requirements of this Section 168, present value provided that, if the Executive does not make such determination within ten (10) business days of the receipt of the calculations made by the Accounting Firm, the Company shall elect which and how much of the Agreement Payment or Other Payments, as the case may be, shall be determined in accordance eliminated or reduced consistent with the requirements of this Section 280G(d)(48 and shall notify the Executive promptly of such election. Within five (5) business days after the determination by the Executive or the Company, as applicable, the Company shall pay to or distribute to or for the benefit of the Code. Any amount which is not paid in Executive such amounts as are then due to the taxable year in which it was originally scheduled Executive under this Agreement and shall promptly pay to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle distribute for the benefit of the Executive in the future such amounts, if any, as become due to the Executive under this Agreement. As a way result of the uncertainty in the application of section 280G of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Agreement Payments or Other Payments, as the amounts so transferred are not taxable to such person or deductible case may be, will have been made by the Company until payment from such vehicle which should not have been made (an "Overpayment") or that additional Agreement Payments or Other Payments, as the case may be, which will have not been made by the Company could have been made (an "Underpayment"), in each case, consistent with the calculations required to the Executive is madebe made hereunder. In the event a payment that the Accounting Firm determines that an Overpayment has been made made, any such Overpayment shall be treated for all purposes as a loan to the Executive which the Executive shall repay to the Company together with interest at the applicable federal rate provided for in section 1274(c) of the Code (the "Applicable Federal Rate"); provided, however, that no amount shall be payable by the Executive to the Company (or if paid by the Executive to the Company shall be returned to the Executive) if and to the extent such payment would not reduce the amount which is subject to taxation under section 4999 of the Code. In the event that the Accounting Firm determines that an Underpayment has occurred, but then disallowed as a deduction any such Underpayment shall be promptly paid by the Internal Revenue Service and return of the payment is required into the trust, said payment Company to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereundertogether with interest at the Applicable Federal Rate; provided, however, that no amount shall be payable by the Executive to the Company (or if paid by the Executive to the Company shall be returned to the Executive) if and to the extent such payment would not reduce the amount which is subject to taxation under section 4999 of the Code.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a "Payment"), ) would be nondeductible by the Company for Federal federal income tax purposes because of Section 280G 28OG of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G 28OG of the Code. Anything in this Agreement to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal federal income tax purposes because of Section 280G 28OG of the Code, . then the aggregate present value of Payments Payments, which are not Agreement Payments Payments, shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G 28OG of the Code. For purposes of this Section 1611, present value shall be determined in accordance with Section 280G(d)(428OG(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled All determinations required to be paid as a result made under this Section 11 shall be made by the Company's independent certified public accountant (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the postponement thereof pursuant hereto Date of Termination. Any such determination by the Accounting Firm shall be payable in binding upon the next succeeding taxable year in Company and the Executive. The Executive shall determine which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G and how much of the Code; Agreement Payments (or, at the election of the Executive, other Payments) shall be eliminated or reduced consistent with the requirements of this Section 11 provided, howeverthat if the Executive does not make such determination within ten business days of the receipt of the calculations made by the Accounting Firm, that all postponed payments the Company shall elect which and how much of the Agreement Payments shall be placed in a Rabbi trust eliminated or similar vehicle reduced consistent with the requirements of this Section 11 and shall notify the Executive promptly of such election. Within five business days thereafter, the Company shall pay to or distribute for the benefit of the Executive in such a way that the amounts so transferred as are not taxable then due to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder.the

Certain Reduction of Payments by the Company. (a) Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, in the event that it shall be is determined that any payment or distribution required to be made by the Company to ANDERS following a Change of Control under Sections 3.5.2 or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise 3.7 herein (a "Change of Control Payment"), would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the CodeInternal Revenue Code of 1986, as amended, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to the Reduced Amount. The "Reduced Amount." The Reduced Amount shall be the greater of (i) an amount expressed in present value which maximizes is the aggregate present value maximum amount of Agreement Change of Control Payments possible without causing any such Change of Control Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to , or (ii) the contrary notwithstandingChange of Control Payment, if the Change of Control Payments provides ANDERS with a greater after tax benefit than (i) herein. The Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless specified in (i) above shall be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Change of Control Payments without causing any Payment Reduced Amount to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or non-deductible by the Company until payment from under Section 280G. In addition, if the Change of Control Payments can be restructured through the provision by ANDERS of personal services or otherwise following a Change of Control, then the parties shall in good faith attempt to agree to a change in such vehicle relationship necessary for ANDERS to receive the Executive is madefull benefits of the Change of Control Payment. In However, any restructuring of the event a payment has been made relationship shall not require ANDERS to the Executive, but then disallowed as a deduction be employed by the Internal Revenue Service and return of the payment is Company or be subject to a non-competition agreement. The determinations required into the trust, said payment to the Executive herein shall be treated as a loan and said payment made by the independent certified public accounting firm which was engaged by the Company to audit the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle Company's financial statements for the benefit fiscal year preceding the year in which the Change of Control occurs. ANDERS shall have the Executive hereunderright to contest such determination.

Certain Reduction of Payments by the Company. (ad) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a "Payment"), ) would be nondeductible by the Company for Federal federal income tax purposes because of Section 280G of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive Employee pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything in this Agreement to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments Payments, which are not Agreement Payments Payments, shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 1611, present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations required to be made under this Section 11 shall be made by the Company's independent certified public accountant (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the Date of Termination. Any amount such determination by the Accounting Firm shall be binding upon the Company and the Employee. The Employee shall determine which is and how much of the Agreement Payments (or, at the election of the Employee, other Payments) shall be eliminated or reduced consistent with the requirements of this Section 11; provided, that if the Employee does not paid make such determination within ten business days of the receipt of the calculations made by the Accounting Firm, the Company shall elect which and how much of the Agreement Payments shall be elimi nated or reduced consistent with the requirements of this Section 11 and shall notify the Employee promptly of such election. Within five business days thereafter, the Company shall pay to or distribute for the benefit of the Employee such amounts as are then due to the Employee under this Agreement and shall promptly pay to or distribute for the benefit of the Employee in the taxable year in which it was originally scheduled future such amounts as become due to be paid as the Employee under this Agreement. As a result of the postponement thereof pursuant hereto uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Agreement Payments will have been made by the Company which should not have been made ("Overpayment") or that additional Agreement Payments which have not been made by the Company could have been made ("Underpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm determines that an Overpayment has been made, any such Overpayment shall be payable treated for all purposes as a loan to the Employee which the Employee shall repay to the Company, together with interest at the applicable federal rate provided for in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m7872(E)(2) or 280G of the Code; provided, however, that all postponed payments no amount shall be placed in a Rabbi trust payable by the Employee to the Company if and to the extent such payment would not reduce the amount which is subject to taxation under Section 4999 of the Code. In the event that the Accounting Firm determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or similar vehicle for the benefit of the Executive Employee, together with interest at the applicable federal rate provided for in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return Section 7872(f)(2) of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunderCode.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement Notwithstanding anything to the contrary notwithstandingin Section 6 of this Agreement or the Incentive Plan (as defined in Section 6(e) above), in no event shall (1) Options and Stock Appreciation become immediately exercisable (2) the event it shall be determined that risks of forfeiture and restrictions relating to Restricted Stock terminate or (3) Performance Share Awards become payable under the Incentive Plan upon the Executive's Date of Termination if such acceleration would (i) cause any payment or distribution by the Company made to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be nondeductible by ) to constitute an "excess parachute payment" within the Company for Federal income tax purposes because meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then or (ii) disqualify the aggregate present value transaction constituting the Change of amounts payable or distributable to or Control from being accounted for as a "pooling of interests" within the benefit meaning of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to the Reduced AmountAPB No. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid would qualify for such accounting treatment in the taxable year in which it was originally scheduled to be paid as a result absence of such acceleration (the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made"Disqualification"). In the event acceleration of any Options would cause any Payment to constitute an excess parachute payment, or would cause a Disqualification, the Compensation Committee of the Company's Board of Directors shall select the Options which shall remain unexercisable so that no Payment shall constitute an excess parachute payment, or would cause a Disqualification, the Compensation Committee of the Company's Board of Directors shall select the Options which shall remain unexercisable so that no Payment shall constitute an excess parachute payment has been made to and/or no Disqualification shall occur. Any Options which remain unexercisable upon the Executive, but then disallowed 's Date of Termination by reason of this Section 11(a) shall become exercisable as a deduction set forth in Section 11(c) below. Any shares of Restricted Stock or Performance Share Awards which do not become vested by the Internal Revenue Service and return reason of the payment is required into the trust, said payment to the Executive this Section 11(a) shall be treated as a loan and said payment to forfeited upon the trust shall be treated as repayment Executive's Date of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunderTermination.

Certain Reduction of Payments by the Company. (a) a. Anything in this Agreement to the contrary notwithstanding, prior to the payment of any lump sum amount payable hereunder, the certified public accountants of the Company immediately prior to a Change of Control (the “Certified Public Accountants”) shall determine as promptly as practical and in any event within 20 business days following the event it shall be determined that termination of employment of Executive whether any payment or distribution by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a "“Payment"), ”) would more likely than not be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and if it is then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter thereinafter referred to as "“Agreement Payments"”) shall be reduced (but not below zero) to the reduced Amount. For purposes of this paragraph, the “Reduced Amount. The "Reduced Amount" ” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of said Section 280G of the Code. Anything to b. If under paragraph (a) of this section the contrary notwithstanding, if the Reduced Amount is zero and it is determined further Certified Public Accountants determine that any Payment which is would more likely than not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Executive may then elect, in the Executive’s sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount), and shall advise the Company in writing of his or her election within 20 business days of the receipt of notice. If no such election is made by the Executive within such 20-day period, the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the Aggregate present Value of the Agreement Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. For purposes of this Section 16paragraph, present value Value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid All determinations made by the Certified Public Accountants shall be binding upon the Company and Executive shall be made within 20 business days of a termination of employment of Executive. With the consent of the Executive, the Company may suspend part or all of the lump sum payment due under Section 9 hereof and any other payments due to the Executive hereunder until the Certified Public Accountants finish the determination and the Executive (or the Company, as the case may be) elect how to reduce the Agreement Payments, if necessary. As promptly as practicable following such determination and the elections hereunder, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement and shall promptly pay to or distribute for the benefit of Executive in the taxable year in which it was originally scheduled future such amounts as become due to be paid as Executive under this Agreement. c. As a result of the postponement thereof pursuant hereto uncertainty in the application of Section 280G of the Code, it is possible that Agreement Payments may have been made by the Company which should not have been made (“Overpayment”) or that additional Agreement Payments which will have not been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the Certified Public Accountants, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or Executive which said Certified Public Accountants believe has a high probability of success, determines that an Overpayment has been made, any such Overpayment shall be payable treated for all purposes as a loan to Executive which Executive shall repay to the Company together with interest at the applicable Federal rate provided for in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m7872(f)(2)(A) or 280G of the Code; provided, however, that all postponed payments no amount shall be placed payable by Executive to the Company in a Rabbi trust and for the extent such payment would not reduce the amount which is subject to taxation under Section 4999 of the Code. In the event that the Certified Public Accountants, based upon controlling precedent, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or similar vehicle for the benefit of the Executive together with interest at the applicable Federal rate provided for in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return Section 7872(f)(2)(A) of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loanCode. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder13.

Certain Reduction of Payments by the Company. (ai) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "“Payment"”), would be nondeductible by constitute an “excess parachute payment” within the Company for Federal income tax purposes because meaning of Section 280G 280G(b) of the Code, and thus would result in the Executive incurring an excise tax under Section 4999 of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "“Agreement Payments"”) shall be reduced to the Reduced Amount, but only if and to the extent that the after-tax value to the Executive of reduced Agreement Payments would exceed the after-tax value to the Executive of the Agreement Payments received by the Executive without application of such reduction. The "“Reduced Amount" ” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments Payments’ which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 167(c), present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in Thus, for illustrative purposes only, if the taxable Executive’s average W-2 compensation for the 5 years prior to the year in which it a change in control occurs (the “Base Amount”) was originally scheduled to be paid as a result $500,000, and the value of the postponement thereof pursuant hereto shall be payable payments and benefits that are contingent upon the change in control (the next succeeding taxable year in which such “Parachute Payments”) was $1,510,000, the Executive would have an excess parachute payment will not result in within the disallowance meaning of a deduction pursuant to either Section 162(m280G(b) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for Code since the benefit value of the Executive in such a way that Parachute Payments ($1,510,000) would be greater than 3 times the amounts so transferred are Executive’s Base Amount ($1,500,000). The amount of the excess parachute payment would be $1,010,000 (the amount by which the value of the Parachute Payments exceeds 1 times the Base Amount), and if the aggregate amount of the Parachute Payments was not taxable to such person or deductible by the Company until payment from such vehicle to reduced, the Executive is madewould incur an excise tax under Section 4999 of the Code equal to 20% of the excess parachute payment (or $202,000). In This excess parachute payment could be avoided if instead, the event value of the Parachute Payments was reduced by $10,001 to $1,499,999 (since the value of the Parachute Payments then would be less than 3 times the Base Amount). Since the Executive would receive a payment has been made greater after tax amount, under the foregoing example, if his Parachute Payments were reduced by $10,001 (to $1,499,999) than he would if his Parachute Payments were not reduced and the Executive incurred a $202,000 excise tax (reducing his Parachute Payments to $1,308,000) on the excess parachute payment, the Executive, but then disallowed as a deduction ’s Parachute Payments would be reduced under this provision to $1,499,999 (by the Internal Revenue Service and return of the payment is required into the trust, said payment $10,001) to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber avoid any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunderexcess parachute payments.

Certain Reduction of Payments by the Company. (a) Anything in Notwithstanding any other provision of this Agreement to the contrary notwithstandingAgreement, in the event it shall be determined that if any payment or distribution by the Company to or for the benefit portion of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of compensation and benefits under this Agreement or otherwise any other payment under any other agreement with or plan of the Company or its affiliates (a in the aggregate "PaymentTotal Payments"), would constitute an "excess parachute payment," then the Total Payments to be nondeductible made to the Executive shall be reduced such that the value of the aggregate Total Payments that the 5 Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Internal Revenue Code (the "Code") (or any successor provision) or which the Company for Federal income tax may pay without loss of deduction under Section 280G(a) of the Code (or any successor provision). For purposes because of this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meaning assigned to them in Section 280G of the CodeCode (or any successor provision), then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (and such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to the Reduced Amount. The "Reduced Amountparachute payments" shall be an amount expressed valued as provided therein. Present value for purposes of this Agreement shall be calculated in present value which maximizes accordance with Section 1274(b)(2) of the aggregate present value Code (or any successor provision). Within 60 days following delivery of Agreement Payments without causing any Payment to be nondeductible a notice by the Company because to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code. Anything to Code (or any successor provision), the contrary notwithstandingExecutive and the Company, if at the Reduced Amount is zero and it is determined further that any Payment Company's expense, shall obtain the opinion (which is need not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G unqualified) of the CodeCompany's independent auditors which sets forth (A) the amount of the Base Period Income, then (B) the aggregate amount and present value of Total Payments which are not Agreement Payments shall also be reduced and (but not below zeroC) to an the amount expressed in present value which maximizes the aggregate and present value of Payments any excess parachute payments without causing any Payment regard to be nondeductible by the Company because limitations of this Section 280G 7. As used in this Section 7, "Base Period Income" means the Executive's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the CodeCode (or any successor provision). For purposes of this Section 16such opinion, present the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with Section 280G(d)(4the principles of Sections 280G(d)(3) and (4) of the CodeCode (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. Any amount which is not paid in Such opinion shall be dated as of the taxable year in which it was originally scheduled Executive's date of termination of employment and addressed to the Company and the Executive and shall be binding, absent manifest error, upon the Company and the Executive. If such opinion determines that there would be an excess parachute payment, the compensation and benefits hereunder or any other payment determined by such auditors to be paid as a result of the postponement thereof pursuant hereto includible in Total Payments shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) reduced or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of eliminated as specified by the Executive in writing delivered to the Company within 30 days of the Executive's receipt of such opinion or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. If such auditors so request in connection with the opinion required by this Section, the Executive and the Company shall obtain, at the Company's expense, and the auditors may rely on in providing the opinion, the advice of a way that firm of recognized executive compensation consultants as to the amounts so transferred are not taxable reasonableness of any item of compensation to such person or deductible be received by the Executive. Notwithstanding the foregoing, if the provisions of Sections 280G and 4999 of the Code (or any successor provisions) are repealed without succession, then this Section 7 shall be of no further force or effect. The Executive shall notify the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction in writing of any claim by the Internal Revenue Service and return that, if successful, would subject the Executive to the tax imposed by Section 4999 of the payment Code. Such notification shall be given as soon as practicable, but no later than 10 business days after the Executive is required into informed in writing of such claim and shall apprise the trust, said payment Company of the nature of the claim and the date on which such claim is requested to be paid. The Executive shall not pay 6 such claim prior to the Executive shall be treated as a loan and said payment expiration of the 30-day period following the date on which she gives notice to the trust Company (or such shorter period ending on the date that any payment of taxes with respect to the claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive agrees to give the Company any information reasonably requested by the Company in writing relating to such claim, to take such action in connection with contesting such claim as the Company shall be treated as repayment of said loanreasonably 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, to cooperate with the Company in good faith in order to effectively contest such claim, to permit the Company to control any proceedings relating to such claim and to permit the Company to pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority with respect to such claim. The Company shall not pledgebear and pay directly all costs and expenses, hypothecate or otherwise encumber including additional interest and penalties, incurred in connection with such contest. Further, provided only that Company receives timely written notification from the Executive with respect to such claim, the Company will indemnify and hold the Executive harmless, on an after-tax basis, for any amounts held in the trust or other similar vehicle for the benefit excise tax under Section 4999 of the Code (including interest and penalties thereon), such that the net amount retained by the Executive hereunderafter the deduction of any such excise tax and any interest or penalties thereon (but not any federal, state or local income tax) would be the same as if such excise tax had never applied.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement Notwithstanding anything to the contrary notwithstandingin Section 6 of this Agreement or the Incentive Plan (as defined in Section 6(e) above), in no event shall (1) Options and Stock Appreciation become immediately exercisable (2) the event it shall be determined that risks of forfeiture and restrictions relating to Restricted Stock terminate or (3) Performance Share Awards become payable under the Incentive Plan upon the Executive's Date of Termination if such acceleration would (i) cause any payment or distribution by the Company made to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be nondeductible by ) to constitute an "excess parachute payment" within the Company for Federal income tax purposes because meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then or (ii) disqualify the aggregate present value transaction constituting the Change of amounts payable or distributable to or Control from being accounted for as a "pooling of interests" within the benefit meaning of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to the Reduced AmountAPB No. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid would qualify for such accounting treatment in the taxable year in which it was originally scheduled to be paid as a result absence of such acceleration (the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made"Disqualification"). In the event acceleration of any Options would cause any Payment to constitute an excess parachute payment, or would cause a Disqualification, the Compensation Committee of the Company's Board of Directors shall select the Options which shall remain unexercisable so that no Payment shall constitute an excess parachute payment has been made to and/or no Disqualification shall occur. Any Options which remain unexercisable upon the Executive, but then disallowed 's Date of Termination by reason of this Section 11(a) shall become exercisable as a deduction set forth in Section 11(c) below. Any shares of Restricted Stock or Performance Share Awards which do not become vested by the Internal Revenue Service and return reason of the payment is required into the trust, said payment to the Executive this Section 11(a) shall be treated as a loan and said payment to forfeited upon the trust shall be treated as repayment Executive's Date of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunderTermination.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a "Payment"), ) would be nondeductible by the Company for Federal federal income tax purposes because of Section 280G 28OG of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G 28OG of the Code. Anything in this Agreement to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal federal income tax purposes because of Section 280G 28OG of the Code, . then the aggregate present value of Payments Payments, which are not Agreement Payments Payments, shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G 28OG of the Code. For purposes of this Section 1611, present value shall be determined in accordance with Section 280G(d)(428OG(d)(4) of the Code. All determinations required to be made under this Section 11 shall be made by the Company's independent certified public accountant (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the Date of Termination. Any amount such determination by the Accounting Firm shall be binding upon the Company and the Executive. The Executive shall determine which is and how much of the Agreement Payments (or, at the election of the Executive, other Payments) shall be eliminated or reduced consistent with the requirements of this Section 11 provided, that if the Executive does not paid make such determination within ten business days of the receipt of the calculations made by the Accounting Firm, the Company shall elect which and how much of the Agreement Payments shall be eliminated or reduced consistent with the requirements of this Section 11 and shall notify the Executive promptly of such election. Within five business days thereafter, the Company shall pay to or distribute for the benefit of the Executive such amounts as are then due to the Executive under this Agreement and shall promptly pay to or distribute for the benefit of the Executive in the taxable year in which it was originally scheduled future such amounts as become due to be paid as the Executive under this Agreement. As a result of the postponement thereof pursuant hereto uncertainty in the application of Section 28OG of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Agreement Payments will have been made by the Company which should not have been made ("Overpayment") or that additional Agreement Payments which have not been made by the Company could have been made ("Underpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm determines that an Overpayment has been made, any such Overpayment shall be payable treated for all purposes as a loan to the Executive which the Executive shall repay to the Company, together with interest at the applicable federal rate provided for in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m7872(E)(2) or 280G of the Code; provided, however, that all postponed payments no amount shall be placed in a Rabbi trust payable by the Executive to the Company if and to the extent such payment would not reduce the amount which is subject to taxation under Section 4999 of the Code. In the event that the Accounting Firm determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by together with interest at the Internal Revenue Service and return applicable federal rate provided for in Section 7872(f)(2) of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunderCode.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "“Payment"), ”) would be nondeductible subject to the excise tax (“Excise Tax”) imposed by the Company for Federal income tax purposes because of Section 280G section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "(“Agreement Payments"Payment”) shall be reduced to (but not below zero) if such reduction would result in the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes Executive retaining a larger amount, after-taxes, including the Excise Tax, than if the Executive received all of the Agreement Payments, and the aggregate present value of the Payments other than Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments (“Other Payments”) shall also be reduced (but not below zero) to an amount expressed if such reduction would result in present value which maximizes the aggregate present value Executive retaining a larger amount, after taxes, including the Excise Tax, than if the Executive received all of Payments without causing any Payment the Other Payments. All determinations required to be nondeductible made under this Section 8 shall be made by the Company because of Section 280G which shall provide detailed supporting calculations to the Executive within fifteen (15) business days of the Codedate of termination of employment of the Executive. For purposes In the event that the Executive shall not agree with such calculations, he shall present his objections to the Company in writing and the Executive and the Company shall discuss the basis for such objections. If the Executive and the Company are unable to agree on the calculations, the Company’s independent auditors (“Accounting Firm”) shall independently perform the calculations called for under this Section 8. Any such determination by the Accounting Firm shall be binding upon the Company and the Executive. The Executive shall determine which and how much of the Agreement Payments or Other Payments, as the case may be, shall be eliminated or reduced consistent with the requirements of this Section 168, present value provided that, if the Executive does not make such determination within ten (10) business days of the receipt of the calculations made by the Accounting Firm, the Company shall elect which and how much of the Agreement Payment or Other Payments, as the case may be, shall be determined in accordance eliminated or reduced consistent with the requirements of this Section 280G(d)(48 and shall notify the Executive promptly of such election. Within five (5) business days after the determination by the Executive or the Company, as applicable, the Company shall pay to or distribute to or for the benefit of the Code. Any amount which is not paid in Executive such amounts as are then due to the taxable year in which it was originally scheduled Executive under this Agreement and shall promptly pay to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle distribute for the benefit of the Executive in the future such amounts, if any, as become due to the Executive under this Agreement. As a way result of the uncertainty in the application of section 280G of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Agreement Payments or Other Payments, as the amounts so transferred are not taxable to such person or deductible case may be, will have been made by the Company until payment from such vehicle which should not have been made (an “Overpayment”) or that additional Agreement Payments or Other Payments, as the case may be, which will have not been made by the Company could have been made (an “Underpayment”), in each case, consistent with the calculations required to the Executive is madebe made hereunder. In the event a payment that the Accounting Firm determines that an Overpayment has been made made, any such Overpayment shall be treated for all purposes as a loan to the Executive which the Executive shall repay to the Company together with interest at the applicable federal rate provided for in section 1274(c) of the Code (the “Applicable Federal Rate”); provided, however, that no amount shall be payable by the Executive to the Company (or if paid by the Executive to the Company shall be returned to the Executive) if and to the extent such payment would not reduce the amount which is subject to taxation under section 4999 of the Code. In the event that the Accounting Firm determines that an Underpayment has occurred, but then disallowed as a deduction any such Underpayment shall be promptly paid by the Internal Revenue Service and return of the payment is required into the trust, said payment Company to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereundertogether with interest at the Applicable Federal Rate; provided, however, that no amount shall be payable by the Executive to the Company (or if paid by the Executive to the Company shall be returned to the Executive) if and to the extent such payment would not reduce the amount which is subject to taxation under section 4999 of the Code.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a "“Payment"), ”) would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive Employee pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "“Agreement Payments"”) shall be reduced to the Reduced Amount. The "“Reduced Amount" ” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 169, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder.

Certain Reduction of Payments by the Company. (a) Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, in the event that it shall be is determined that any payment or distribution required to be made by the Company to SHEA xxxlowing a Change of Control under Sections 3.5.2 or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise 3.7 herein (a "Change of Control Payment"), would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the CodeInternal Revenue Code of 1986, as amended, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to the Reduced Amount. The "Reduced Amount." The Reduced Amount shall be the greater of (i) an amount expressed in present value which maximizes is the aggregate present value maximum amount of Agreement Change of Control Payments possible without causing any such Change of Control Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to , or (ii) the contrary notwithstandingChange of Control Payment, if the Change of Control Payments provides SHEA xxxh a greater after tax benefit than (i) herein. The Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless specified in (i) above shall be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Change of Control Payments without causing any Payment Reduced Amount to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or non-deductible by the Company until payment from under Section 280G. In addition, if the Change of Control Payments can be restructured through the provision by SHEA xx personal services or otherwise following a Change of Control, then the parties shall in good faith attempt to agree to a change in such vehicle to relationship necessary for SHEA xx receive the Executive is madefull benefits of the Change of Control Payment. In However, any restructuring of the event a payment has been made to the Executive, but then disallowed as a deduction relationship shall not require SHEA xx be employed by the Internal Revenue Service and return of the payment is Company or be subject to a non-competition agreement. The determinations required into the trust, said payment to the Executive herein shall be treated as a loan and said payment made by the independent certified public accounting firm which was engaged by the Company to audit the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle Company's financial statements for the benefit fiscal year preceding the year in which the Change of Control occurs. SHEA xxxll have the Executive hereunderright to contest such determination.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in In the event that it shall be is determined that any payment or distribution by the Company to the Executive or for the benefit of the Executive’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option or restricted stock or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a "“Payment"”), would be nondeductible subject to the excise tax imposed by Section 4999 of the Company for Federal income tax purposes because Code (or any successor provision thereto), by reason of being considered “contingent on a change in the ownership or effective control” of the Company, within the meaning of Section 280G of the CodeCode (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 the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") Payment shall be reduced to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of in a manner determined by the Company to be $1.00 less than three (3) times the Executive’s base amount (as defined in Section 280G of the Code. Anything ) so that no portion of the Payment shall be subject to the contrary notwithstandingExcise Tax, if the Reduced Amount is zero and it is determined further provided that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income shall make such reduction only if such reduction would effect, on an after-tax purposes because of Section 280G basis, a Payment that is greater than the Payment that would be made if no such reduction were effected. The Executive shall be permitted to provide the Company with written notice specifying which of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also will be reduced (but not below zero) subject to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) reduction or 280G of the Codeelimination; provided, however, that all postponed payments to the extent that the Executive’s ability to exercise such authority would cause any Payment to become subject to any taxes or penalties pursuant to Section 409A, or if the Executive does not provide the Company with any such written notice, the Company shall be placed in a Rabbi trust reduce or similar vehicle for eliminate the benefit Payments by first reducing or eliminating the portion of the Executive Payments that are payable in such a way that cash and then by reducing or eliminating the amounts so transferred non-cash portion of the Payments, in each case in reverse order beginning with payments or benefits which are not taxable to such person or deductible be paid the farthest in time. Except as set forth in the preceding sentence, any notice given by the Company until payment from such vehicle Executive pursuant to the Executive is made. In preceding sentence shall take precedence over the event a payment has been made to provisions of any other plan, arrangement or agreement governing the Executive, but then disallowed as a deduction by the Internal Revenue Service ’s rights and return of the payment is required into the trust, said payment entitlements to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loanany benefits or compensation. The Company shall not pledge, hypothecate or otherwise encumber may withhold from any amounts held in the trust payable under this Agreement all federal, state, local and foreign taxes as may be required to be withheld pursuant to any applicable law or other similar vehicle for the benefit of the Executive hereunderregulation.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a "Payment"), ) would be nondeductible by the Company for Federal federal income tax purposes because of Section 280G 28OG of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G 28OG of the Code. Anything in this Agreement to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal federal income tax purposes because of Section 280G 28OG of the Code, . then the aggregate present value of Payments Payments, which are not Agreement Payments Payments, shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G 28OG of the Code. For purposes of this Section 1611, present value shall be determined in accordance with Section 280G(d)(428OG(d)(4) of the Code. All determinations required to be made under this Section 11 shall be made by the Company's independent certified public accountant (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the Date of Termination. Any amount such determination by the Accounting Firm shall be binding upon the Company and the Executive. The Executive shall determine which is and how much of the Agreement Payments (or, at the election of the Executive, other Payments) shall be eliminated or reduced consistent with the requirements of this Section 11 provided, that if the Executive does not paid make such determination within ten business days of the receipt of the calculations made by the Accounting Firm, the Company shall elect which and how much of the Agreement Payments shall be eliminated or reduced consistent with the requirements of this Section 11 and shall notify the Executive promptly of such election. Within five business days thereafter, the Company shall pay to or distribute for the benefit of the Executive such amounts as are then due to the Executive under this Agreement and shall promptly pay to or distribute for the benefit of the Executive in the taxable year in which it was originally scheduled future such amounts as become due to be paid as the Executive under this Agreement. As a result of the postponement thereof pursuant hereto uncertainty in the application of Section 28OG of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Agreement Payments will have been made by the Company which should not have been made ("Overpayment") or that additional Agreement Payments which have not been made by the Company could have been made ("Underpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm determines that an Overpayment has been made, any such Overpayment shall be payable treated for all purposes as a loan to the Executive which the Executive shall repay to the Company, together with interest at the applicable federal rate provided for in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m7872(E)(2) or 280G of the Code; provided, however, that all postponed payments no amount shall be placed in a Rabbi trust payable by the Executive to the Company if and to the extent such payment would not reduce the amount which is subject to taxation under Section 4999 of the Code. In the event that the Accounting Firm determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by together with interest at the Internal Revenue Service and return applicable federal rate provided for in Section 7872(f(2) of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunderCode.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a "Payment"), ) would be nondeductible by the Company for Federal federal income tax purposes because of Section 280G 28OG of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G 28OG of the Code. Anything in this Agreement to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal federal income tax purposes because of Section 280G 28OG of the Code, . then the aggregate present value of Payments Payments, which are not Agreement Payments Payments, shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G 28OG of the Code. For purposes of this Section 1611, present value shall be determined in accordance with Section 280G(d)(428OG(d)(4) of the Code. All determinations required to be made under this Section 11 shall be made by the Company's independent certified public accountant (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 15 business 17 18 days of the Date of Termination. Any amount such determination by the Accounting Firm shall be binding upon the Company and the Executive. The Executive shall determine which is and how much of the Agreement Payments (or, at the election of the Executive, other Payments) shall be eliminated or reduced consistent with the requirements of this Section 11 provided, that if the Executive does not paid make such determination within ten business days of the receipt of the calculations made by the Accounting Firm, the Company shall elect which and how much of the Agreement Payments shall be eliminated or reduced consistent with the requirements of this Section 11 and shall notify the Executive promptly of such election. Within five business days thereafter, the Company shall pay to or distribute for the benefit of the Executive such amounts as are then due to the Executive under this Agreement and shall promptly pay to or distribute for the benefit of the Executive in the taxable year in which it was originally scheduled future such amounts as become due to be paid as the Executive under this Agreement. As a result of the postponement thereof pursuant hereto uncertainty in the application of Section 28OG of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Agreement Payments will have been made by the Company which should not have been made ("Overpayment") or that additional Agreement Payments which have not been made by the Company could have been made ("Underpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm determines that an Overpayment has been made, any such Overpayment shall be payable treated for all purposes as a loan to the Executive which the Executive shall repay to the Company, together with interest at the applicable federal rate provided for in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m7872(E)(2) or 280G of the Code; provided, however, that all postponed payments no amount shall be placed in a Rabbi trust payable by the Executive to the Company if and to the extent such payment would not reduce the amount which is subject to taxation under Section 4999 of the Code. In the event that the Accounting Firm determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by together with interest at the Internal Revenue Service and return applicable federal rate provided for in Section 7872(f)(2) of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunderCode.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to the Reduced Amount. The "“Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 165.9, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder.

Certain Reduction of Payments by the Company. (ad) Anything in this Agreement to the contrary con-trary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed dis-tributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be nondeductible nondeduc-tible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions distribu-tions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment Pay-ment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstandingnotwithstand-ing, if the Reduced Amount is zero and it is determined further fur-ther that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because be-cause of Section 280G of the Code. For purposes of this Section 16, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder.

Certain Reduction of Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "PaymentPAYMENT"), would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement PaymentsAGREEMENT PAYMENTS") shall be reduced to the Reduced Amount. The "Reduced AmountREDUCED AMOUNT" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 16Section, present value shall be determined in accordance with Section 280G(d)(4) of the Code. Any amount which is not paid in the taxable year in which it was originally scheduled to be paid as a result of the postponement thereof pursuant hereto shall be payable in the next succeeding taxable year in which such payment will not result in the disallowance of a deduction pursuant to either Section 162(m) or 280G of the Code; provided, however, that all postponed payments shall be placed in a Rabbi trust or similar vehicle for the benefit of the Executive in such a way that the amounts so transferred are not taxable to such person or deductible by the Company until payment from such vehicle to the Executive is made. In the event a payment has been made to the Executive, but then disallowed as a deduction by the Internal Revenue Service and return of the payment is required into the trust, said payment to the Executive shall be treated as a loan and said payment to the trust shall be treated as repayment of said loan. The Company shall not pledge, hypothecate or otherwise encumber any amounts held in the trust or other similar vehicle for the benefit of the Executive hereunder.