Common use of Certain Reductions in Payments Clause in Contracts

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event that Ernst & Young LLP or such other nationally recognized accounting firm as shall be selected by the Executive and the Company (as it exists prior to the Effective Date) (the “Accounting Firm”) shall determine that receipt of all payments, benefits or distributions by the Company or its affiliates in the nature of compensation to or for the Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to the non-competition covenant in Section 10(a)), subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether it is necessary to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by the Accounting Firm, the Executive shall receive all Agreement Payments to which the Executive is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) be taken into account for purposes of the Accounting Firm’s determination, if it would reduce the Agreement Payments to be paid to the Executive, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” and therefore any excise tax under Section 4999 of the Code. Any valuation of the non-competition covenant in Section 10(a) shall be determined by the Accounting Firm (or, if the Accounting Firm is not able to make such determination, an independent third-party valuation specialist, selected by the Executive), and the Company shall cooperate in good faith in connection with any such valuation process.

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event that Ernst & Young LLP or such other nationally recognized accounting firm as shall be selected by the Executive and the Company (as it exists prior to the Effective Date) (the “Accounting Firm”) shall determine that receipt of all payments, benefits or distributions by the Company or its affiliates in the nature of compensation to or for the Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to the non-competition covenant in Section 10(a)), subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether it is necessary to reduce any of the Payments paid or payable pursuant to this Agreement that are taxable in the year in which the change in ownership or control occurs (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by the Accounting Firm, the Executive shall receive all Agreement Payments to which the Executive is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) be taken into account for purposes of the Accounting Firm’s determination, if it would reduce the Agreement Payments to be paid to the Executive, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” and therefore any excise tax under Section 4999 of the Code. Any valuation of the non-competition covenant in Section 10(a) shall be determined by the Accounting Firm (or, if the Accounting Firm is not able to make such determination, an independent third-party valuation specialist, selected by the Executive), and the Company shall cooperate in good faith in connection with any such valuation process.

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event that Ernst & Young LLP or such other an independent, nationally recognized accounting firm as shall be selected designated by the Executive and the Company (as it exists Employer prior to the Effective Date) a Change in Control (the “Accounting Firm”) shall determine that receipt of all payments, benefits benefits, or distributions by the Company Employer or its affiliates in the nature of compensation to or for the Executive’s 's benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to the non-competition covenant in Section 10(a))8), subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether it is necessary to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined belowbelow in Section 7(d)). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined belowbelow in Section 7(d)) of aggregate Payments if the Executive’s 's Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by instead the Accounting FirmFirm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive's Agreement Payments were reduced to the Reduced Amount, the Executive shall receive all Agreement Payments to which the Executive is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) 8 be taken into account for purposes of the Accounting Firm’s determination, 's determination if it would reduce the Agreement Payments to be paid to the Executive, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” and therefore reduce any excise tax under Section 4999 of the Code. Any valuation of the non-competition covenant in Section 10(a) 8 shall be determined by the Accounting Firm (or, if the Accounting Firm is not able to make such determination, an independent third-party valuation specialist, selected by the ExecutiveEmployer), and the Company Employer shall cooperate in good faith in connection with any such valuation process. In no event shall this Section 7 or any other provision of this Agreement be construed to require the Employer to provide any tax gross-up for Executive's excise tax liability, if any, under Section 4999 of the Code.

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in In the event that Ernst & Young LLP any payment received or such other nationally recognized accounting firm as shall to be selected received by the Executive and the Company (as it exists prior to the Effective Date) (the “Accounting Firm”) shall determine that receipt of all payments, benefits or distributions by the Company or its affiliates in the nature of compensation to or for the Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to i) constitute a “parachute payment” within the non-competition covenant in meaning of Section 10(a)280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this subsection (a), be subject the Executive to the excise tax under imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax (such excise tax, together with any interest and penalties, is hereinafter referred to as the Accounting Firm “Excise Tax”), then, subject to the provisions of subsection (b) hereof, such Payment shall determine whether it is necessary be either (A) delivered in full pursuant to reduce any the terms of this Agreement, or (B) delivered as to such lesser extent which would result in no portion of such severance payments and other benefits being subject to the Excise Tax (“Reduced Amount”), whichever of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by the Accounting Firmforegoing amounts, the Executive shall receive all Agreement Payments to which the Executive is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) be taken taking into account for purposes of the Accounting Firm’s determinationapplicable federal, if it would reduce state, local and foreign income, employment and other taxes and the Agreement Payments to be paid to Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by the Executive, it being understood on an after-tax basis, of the greatest amount of severance payments and benefits provided for hereunder, notwithstanding that all or some portion of such severance payments and benefits may be subject to the Excise Tax. Unless the Company and the Executive otherwise agree in writing, any such valuation is intended solely determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to reduce Executive (“Independent Tax Counsel’), whose determination shall be conclusive and binding upon the amounts that are considered “parachute payments” Executive and therefore any excise tax the Company for all purposes. For purposes of making the calculations required under this Section 4.4, Independent Tax Counsel may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Any valuation of the non-competition covenant The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in Section 10(a) shall be determined by the Accounting Firm (or, if the Accounting Firm is not able order to make such determination, an independent third-party valuation specialist, selected by the Executive), and the a determination under this Section 4.4. The Company shall cooperate in good faith bear all costs that Independent Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 4.4. In the event that Section 4.4(a)(ii)(B) above applies, then based on the information provided to Executive and the Company by Independent Tax Counsel, Executive may, in the Executive’s sole discretion and within 30 days of the date which Executive is provided with the information prepared by Independent Tax Counsel, determine which and how much of the Payments to be otherwise received by Executive shall be eliminated or reduced (as long as after such valuation processdetermination the value (as calculated by Independent Tax Counsel in accordance with the provisions of Sections 280G and 4999 of the Code) of the amounts payable or distributable to Executive hereunder equals the Reduced Amount). If the Internal Revenue Service (the “IRS”) determines that a Payment is subject to the Excise Tax, then subsection (b) hereof shall apply, and the enforcement of subsection (b) shall be the exclusive remedy to the Company.

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in In the event that Ernst & Young LLP any payment received or such other nationally recognized accounting firm as shall to be selected received by the Executive and the Company (as it exists prior to the Effective Date) (the “Accounting Firm”) shall determine that receipt of all payments, benefits or distributions by the Company or its affiliates in the nature of compensation to or for the Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to i) constitute a “parachute payment” within the non-competition covenant in meaning of Section 10(a)280G of the Code and (ii) but for this subsection (a), be subject the Executive to the excise tax under imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax (such excise tax, together with any interest and penalties, is hereinafter referred to as the Accounting Firm “Excise Tax”), then, subject to the provisions of subsection (b) hereof, such Payment shall determine whether it is necessary be either (A) delivered in full pursuant to reduce any the terms of this Agreement, or (B) delivered as to such lesser extent which would result in no portion of such severance payments and other benefits being subject to the Excise Tax (“Reduced Amount”), whichever of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by the Accounting Firmforegoing amounts, the Executive shall receive all Agreement Payments to which the Executive is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) be taken taking into account for purposes of the Accounting Firm’s determinationapplicable federal, if it would reduce state, local and foreign income, employment and other taxes and the Agreement Payments to be paid to Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by the Executive, it being understood on an after-tax basis, of the greatest amount of severance payments and benefits provided for hereunder, notwithstanding that all or some portion of such severance payments and benefits may be subject to the Excise Tax. Unless the Company and the Executive otherwise agree in writing, any such valuation is intended solely determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to reduce Executive (“Independent Tax Counsel”), whose determination shall be conclusive and binding upon the amounts that are considered “parachute payments” Executive and therefore any excise tax the Company for all purposes. For purposes of making the calculations required under this Section 4.4, Independent Tax Counsel may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Any valuation of the non-competition covenant The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in Section 10(a) shall be determined by the Accounting Firm (or, if the Accounting Firm is not able order to make such determination, an independent third-party valuation specialist, selected by the Executive), and the a determination under this Section 4.4. The Company shall cooperate in good faith bear all costs that Independent Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 4.4. In the event that Section 4.4(a)(ii)(B) above applies, any reduction in Payments to be otherwise received by Executive shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such valuation processacceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. If the Internal Revenue Service (the “IRS”) determines that a Payment is subject to the Excise Tax, then subsection (b) hereof shall apply, and the enforcement of subsection (b) shall be the exclusive remedy to the Company.”

Certain Reductions in Payments. (a) Anything in this the Agreement to the contrary notwithstanding, in if the event that Ernst & Young LLP or such other nationally recognized accounting firm as shall be selected by the Executive and the Company Accounting Firm (as it exists prior to the Effective Date) (the “Accounting Firm”defined below) shall determine that receipt of all payments, benefits or distributions by the Company or its affiliates in the nature of compensation to or for the Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise Payments (a “Payment”as defined below) would (after taking into account any value attributable to the non-competition covenant in Section 10(a)), subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether it is necessary to reduce any of the Payments paid or payable pursuant to this the Agreement (the “Agreement Payments”) to so that the Reduced Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amountso reduced. If such a determination is not made by the Accounting FirmFirm determines that the Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder. For purposes of all present-value determinations required to be made under this AgreementSection 8, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations § 1- 280G, Q&A-32. Notwithstanding anything to (b) If the contraryAccounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in no event the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the value (if any) attributable Executive notice to the non-competition covenant in Section 10(a) be taken into account for purposes that effect and a copy of the Accounting Firm’s determination, if it would reduce the Agreement Payments to be paid to the Executive, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” and therefore any excise tax under Section 4999 of the Codedetailed calculation thereof. Any valuation of the non-competition covenant in Section 10(a) shall be determined All determinations made by the Accounting Firm under this Section 8 shall be binding upon the Company, the Affiliated Entities and the Executive and shall be made as soon as reasonably practicable and in no event later than 15 days following the Date of Termination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under the Agreement (orand no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if the Accounting Firm is not able to make such determinationapplicable, an independent thirdshall be DocuSign Envelope ID: A317C92E-party valuation specialist, selected by the Executive), and the Company shall cooperate in good faith in connection with any such valuation process.D055-4D96-A471-0DADD4A22A28

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event that Ernst & Young LLP or such other nationally recognized accounting firm as shall be selected by the Executive Employee and the Company (as it exists prior to the Effective Date) (the “Accounting Firm”) ), shall determine that receipt of all payments, benefits or distributions by the Company or its affiliates in the nature of compensation to or for the ExecutiveEmployee’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to the non-competition covenant in Section 10(a)), subject the Executive Employee to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether it is necessary to reduce any of the Payments paid or payable pursuant to this Agreement that are taxable in the year in which the change in ownership or control occurs (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive Employee would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the ExecutiveEmployee’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by the Accounting Firm, the Executive Employee shall receive all Agreement Payments to which the Executive Employee is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) be taken into account for purposes of the Accounting Firm’s determination, if it would reduce the Agreement Payments to be paid to the ExecutiveEmployee, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” and therefore any excise tax under Section 4999 of the Code. Any valuation of the non-competition covenant in Section 10(a) shall be determined by the Accounting Firm (or, if the Accounting Firm is not able to make such determination, an independent third-party valuation specialist, selected by the ExecutiveEmployee), and the Company shall cooperate in good faith in connection with any such valuation process.

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event that Ernst & Young LLP or such other an independent, nationally recognized accounting firm as shall be selected designated by the Executive and the Company (as it exists Employer prior to the Effective Date) a Change in Control (the “Accounting Firm”) shall determine that receipt of all payments, benefits benefits, or distributions by the Company Employer or its affiliates Affiliates in the nature of compensation to or for the Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to the non-competition covenant in Section 10(a)9), subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether it is necessary to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined belowbelow in Section 8(d)). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined belowbelow in Section 8(d)) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by instead the Accounting FirmFirm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive’s Agreement Payments were reduced to the Reduced Amount, the Executive shall receive all Agreement Payments to which the Executive is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) 9 be taken into account for purposes of the Accounting Firm’s determination, determination if it would reduce the Agreement Payments to be paid to the Executive, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” and therefore reduce any excise tax under Section 4999 of the Code. Any valuation of the non-competition covenant in Section 10(a) 9 shall be determined by the Accounting Firm (or, if the Accounting Firm is not able to make such determination, an independent third-party valuation specialist, selected by the ExecutiveEmployer), and the Company Employer shall cooperate in good faith in connection with any such valuation process. In no event shall this Section 8 or any other provision of this Agreement be construed to require the Employer to provide any tax gross-up for Executive’s excise tax liability, if any, under Section 4999 of the Code.

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event that Ernst & Young LLP or such other an independent, nationally recognized accounting firm as shall be selected designated by the Executive and the Company (as it exists Employer prior to the Effective Date) a Change in Control (the “Accounting Firm”) shall determine that receipt of all payments, benefits or distributions by the Company Employer or its affiliates in the nature of compensation to or for the Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to the non-competition covenant in Section 10(a))8), subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether it is necessary to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined belowbelow in Section 7(d)). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined belowbelow in Section 7(d)) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by instead the Accounting FirmFirm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive’s Agreement Payments were reduced to the Reduced Amount, the Executive shall receive all Agreement Payments to which the Executive is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) 8 be taken into account for purposes of the Accounting Firm’s determination, determination if it would reduce the Agreement Payments to be paid to the Executive, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” and therefore reduce any excise tax under Section 4999 of the Code. Any valuation of the non-competition covenant in Section 10(a) 8 shall be determined by the Accounting Firm (or, if the Accounting Firm is not able to make such determination, an independent third-party valuation specialist, selected by the ExecutiveEmployer), and the Company Employer shall cooperate in good faith in connection with any such valuation process.

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event that Ernst & Young LLP or such other nationally recognized accounting firm as shall be selected by the Executive Employee and the Company (as it exists prior to the Effective Date) (the “Accounting Firm”) ), shall determine that receipt of all payments, benefits or distributions by the Company or its affiliates in the nature of compensation to or for the ExecutiveEmployee’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to the non-competition covenant in Section 10(a)), subject the Executive Employee to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether it is necessary to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive Employee would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the ExecutiveEmployee’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by the Accounting Firm, the Executive Employee shall receive all Agreement Payments to which the Executive Employee is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) be taken into account for purposes of the Accounting Firm’s determination, determination if it would reduce the Agreement Payments to be paid to the ExecutiveEmployee, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” and therefore any excise tax under Section 4999 of the Code. Any valuation of the non-competition covenant in Section 10(a) shall be determined by the Accounting Firm (or, if the Accounting Firm is not able to make such determination, an independent third-party valuation specialist, selected by the ExecutiveEmployee), and the Company shall cooperate in good faith in connection with any such valuation process.

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event that Ernst & Young LLP or such other nationally recognized accounting firm as shall be selected by the Executive Employee and the Company (as it exists prior to the Effective Date) (the “Accounting Firm”) ), shall determine that receipt of all payments, benefits or distributions by the Company or its affiliates in the nature of compensation to or for the ExecutiveEmployee’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to the non-competition covenant in Section 10(a)), subject the Executive Employee to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether it is necessary to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive Employee would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the ExecutiveEmployee’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by the Accounting Firm, the Executive Employee shall receive all Agreement Payments to which the Executive Employee is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) be taken into account for purposes of the Accounting Firm’s determination, if it would reduce the Agreement Payments to be paid to the ExecutiveEmployee, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” and therefore any excise tax under Section 4999 of the Code. Any valuation of the non-competition covenant in Section 10(a) shall be determined by the Accounting Firm (or, if the Accounting Firm is not able to make such determination, an independent third-party valuation specialist, selected by the ExecutiveEmployee), and the Company shall cooperate in good faith in connection with any such valuation process.

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event that Ernst & Young LLP or such other an independent, nationally recognized accounting firm as shall be selected designated by the Executive and the Company (as it exists Employer prior to the Effective Date) a Change in Control (the “Accounting Firm”) shall determine that receipt of all payments, benefits or distributions by the Company Employer or its affiliates in the nature of compensation to or for the Executive’s 's benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to the non-competition covenant in Section 10(a))8), subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether it is necessary to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined belowbelow in Section 7(d)). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined belowbelow in Section 7(d)) of aggregate Payments if the Executive’s 's Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by instead the Accounting FirmFirm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive's Agreement Payments were reduced to the Reduced Amount, the Executive shall receive all Agreement Payments to which the Executive is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) 8 be taken into account for purposes of the Accounting Firm’s determination, 's determination if it would reduce the Agreement Payments to be paid to the Executive, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” and therefore reduce any excise tax under Section 4999 of the Code. Any valuation of the non-competition covenant in Section 10(a) 8 shall be determined by the Accounting Firm (or, if the Accounting Firm is not able to make such determination, an independent third-party valuation specialist, selected by the ExecutiveEmployer), and the Company Employer shall cooperate in good faith in connection with any such valuation process. In no event shall this Section 7 or any other provision of this Agreement be construed to require the Employer to provide any tax gross-up for the Executive's excise tax liability, if any, under Section 4999 of the Code.

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in the event that Ernst & Young LLP or such other an independent, nationally recognized accounting firm as shall be selected designated by the Executive and the Company (as it exists Employer prior to the Effective Date) a Change in Control (the “Accounting Firm”) shall determine that receipt of all payments, benefits benefits, or distributions by the Company Employer or its affiliates in the nature of compensation to or for the Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to the non-competition covenant in Section 10(a))8), subject the Executive to the excise tax under Section 4999 of the Code, the - 7 - Accounting Firm shall determine whether it is necessary to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined belowbelow in Section 7(d)). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined belowbelow in Section 7(d)) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by instead the Accounting FirmFirm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive’s Agreement Payments were reduced to the Reduced Amount, the Executive shall receive all Agreement Payments to which the Executive is entitled under this Agreement. Notwithstanding anything to the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) 8 be taken into account for purposes of the Accounting Firm’s determination, determination if it would reduce the Agreement Payments to be paid to the Executive, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” and therefore reduce any excise tax under Section 4999 of the Code. Any valuation of the non-competition covenant in Section 10(a) 8 shall be determined by the Accounting Firm (or, if the Accounting Firm is not able to make such determination, an independent third-party valuation specialist, selected by the ExecutiveEmployer), and the Company Employer shall cooperate in good faith in connection with any such valuation process. In no event shall this Section 7 or any other provision of this Agreement be construed to require the Employer to provide any tax gross-up for Executive’s excise tax liability, if any, under Section 4999 of the Code.

Certain Reductions in Payments. (a) Anything in this Agreement to the contrary notwithstanding, in In the event that Ernst & Young LLP any payment received or such other nationally recognized accounting firm as shall to be selected received by the Executive and the Company (as it exists prior to the Effective Date) (the “Accounting Firm”) shall determine that receipt of all payments, benefits or distributions by the Company or its affiliates in the nature of compensation to or for the Executive’s benefit, whether paid or payable pursuant to this Agreement or otherwise (a “Payment”) would (after taking into account any value attributable to i) constitute a “parachute payment” within the non-competition covenant in meaning of Section 10(a)280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this subsection (a), be subject the Executive to the excise tax under imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax (such excise tax, together with any interest and penalties, is hereinafter referred to as the Accounting Firm “Excise Tax”), then, subject to the provisions of subsection (b) hereof, such Payment shall determine whether it is necessary be either (A) delivered in full pursuant to reduce any the terms of this Agreement, or (B) delivered as to such lesser extent which would result in no portion of such severance payments and other benefits being subject to the Excise Tax (“Reduced Amount”), whichever of the Payments paid foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or payable pursuant to this Agreement (penalties on such taxes), results in the “Agreement Payments”) receipt by Executive, on an after-tax basis, of the greatest amount of severance payments and benefits provided for hereunder, notwithstanding that all or some portion of such severance payments and benefits may be subject to the Reduced Amount (as defined below)Excise Tax. The Agreement Payments Unless the Company and Executive otherwise agree in writing, any determination required under this Section 4.4 shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by independent tax counsel designated by the Accounting FirmCompany and reasonably acceptable to Executive (“Independent Tax Counsel”), whose determination shall be conclusive and binding upon Executive and the Executive shall receive Company for all Agreement Payments to which purposes. For purposes of making the Executive is entitled calculations required under this Agreement. Notwithstanding anything to Section 4.4, Independent Tax Counsel may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the contrary, in no event shall the value (if any) attributable to the non-competition covenant in Section 10(a) be taken into account for purposes application of the Accounting Firm’s determination, if it would reduce the Agreement Payments to be paid to the Executive, it being understood that any such valuation is intended solely to reduce the amounts that are considered “parachute payments” Sections 280G and therefore any excise tax under Section 4999 of the Code. Any valuation of the non-competition covenant The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in Section 10(a) shall be determined by the Accounting Firm (or, if the Accounting Firm is not able order to make such determination, an independent third-party valuation specialist, selected by the Executive), and the a determination under this Section 4.4. The Company shall cooperate in good faith bear all costs that Independent Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 4.4. In the event that Section 4.4(a)(ii)(B) above applies, then based on the information provided to Executive and the Company by Independent Tax Counsel, Executive may, in Executive’s sole discretion and within thirty (30) days of the date which Executive is provided with the information prepared by Independent Tax Counsel, determine which and how much of the Payments to be otherwise received by Executive shall be eliminated or reduced (as long as after such valuation processdetermination the value (as calculated by Independent Tax Counsel in accordance with the provisions of Sections 280G and 4999 of the Code) of the amounts payable or distributable to Executive hereunder equals the Reduced Amount). If the Internal Revenue Service (the “IRS”) determines that a Payment is subject to the Excise Tax, then subsection (b) hereof shall apply, and the enforcement of subsection (b) shall be the exclusive remedy to the Company.