Common use of Certain Reductions in Payments Clause in Contracts

Certain Reductions in Payments. (a) In the event that any payment received or to be received by Executive pursuant to this Agreement (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this subsection (a), be subject to the excise tax 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 “Excise Tax”), then, subject to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to 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 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel’), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall 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 determination 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. (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b), Executive shall pay the Excise Tax.

Certain Reductions in Payments. (a) In the event that the benefits under this Agreement, when aggregated with any payment other payments or benefits received by Executive, or to be received by Executive pursuant to this Agreement (“Payment”) Executive, would (i) constitute a “"parachute payment” payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this subsection (a)provision, would be subject to the excise tax imposed by Section 4999 of the Code, Code or any comparable federal, state, local similar or foreign excise tax successor provision (such excise tax, together with any interest and penalties, is hereinafter referred to as the “"Excise Tax”"), then, subject to the provisions of subsection (b) hereof, such Payment then Executive's benefits shall either be either (A) delivered in full pursuant to the terms of this Agreement, or (B) delivered as to such lesser extent which amount or degree as would result in no portion of such severance payments and other benefits being subject to the Excise Tax (“Reduced Amount”)excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state, state and local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes)Tax, results in the receipt by the Executive, Executive on an after-tax basis, of the greatest amount of severance payments and benefits provided for hereunderbenefits, notwithstanding that all or some portion of such severance payments and benefits may be subject to the Excise Tax. . (b) Unless the Company Parent and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated in writing by the Company and reasonably acceptable to Executive Parent's primary independent public accounting firm (“Independent Tax Counsel’the "Accountant's), whose determination shall be conclusive and binding upon the Executive and the Company Parent for all purposes. For purposes of making the calculations required under by this Section 4.4Section, Independent Tax Counsel the Accountants 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. The Company Parent and Executive shall furnish to Independent Tax Counsel the Accountants such information and documents as Independent Tax Counsel the Accountants may reasonably request in order to make a its determination under this Section 4.4Section. The Company Parent shall bear all costs that Independent Tax Counsel the Accountants 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 determination 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 CompanySection. (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b), Executive shall pay the Excise Tax.

Certain Reductions in Payments. (a) In Anything in this Agreement to the contrary notwithstanding, in the event that any payment received benefits provided by the Company to or for the benefit of Executive (whether provided or to be received by Executive provided pursuant to the terms of this Agreement or any other agreement by and between Executive and the Company, including, but not limited to, the Executive's Employment Agreement, dated November 26, 2001 (“Payment”the "Employment Agreement")) (the "Benefits") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended 1986 ("the “Code”") and (ii) but for this subsection (a)Section 1.3, be subject to the excise tax imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax Code (such excise tax, together with any interest and penalties, is hereinafter referred to as the “"Excise Tax”"), then, subject in accordance with this Section 1.3, the Benefits shall be reduced to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to the terms of this Agreement, or (B) delivered as to such lesser extent which maximum amount that would result in no portion of such severance payments and other benefits the Benefits being subject to the Excise Tax (“Reduced Amount”), whichever of the 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel’), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall 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 determination 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, but only if and the enforcement of subsection (b) shall be the exclusive remedy to the Company. extent that such a reduction would result in Executive's receipt of a net amount that is greater than the net amount Executive would receive (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence after application of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an Tax) if no reduction is made. The amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments required reduction, if any, shall be the smallest such amount, if any, as shall be required to be paid to the Company amount so that the Executive’s 's net proceeds with respect to such Payments the Benefits (after taking into account the payment of the any Excise Tax imposed on such Paymentsand all federal, state and local income, employment or other taxes) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b)Section 1.3, Executive shall pay the Excise Tax. (b) All determinations required to be made under this Section 1.3 shall be made by independent auditors selected by the Company (which independent auditors may include the Company's independent auditors). Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such reasonable determination by the Company's independent auditors shall be binding upon the Company and Executive. The Executive shall determine which and how much of the Benefits shall be eliminated or reduced consistent with the requirements of this Section 1.3, provided that, if Executive does not make such determination within ten (10) business days of the receipt of the calculations made by the Company's independent auditors, the Company shall elect which and how much of the Benefits shall be eliminated or reduced consistent with the requirements of this Section 1.3, and then the Company shall notify Executive promptly of such election. Upon such determination, the Benefits (as adjusted pursuant to this Article 1) shall be provided to or for the benefit of the Executive.

Certain Reductions in Payments. (a) In the event that any payment received or to be received by Executive pursuant to this Agreement (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this subsection (a), be subject to the excise tax 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 “Excise Tax”), then, subject to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to 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 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel’”), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall 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 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 determination 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. (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 thirty (30) days after a final IRS determination, an amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero ($0.00) if a Repayment Amount of more than zero ($0.00) would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b), Executive shall pay the Excise Tax.

Certain Reductions in Payments. (a) In the event that any payment received or to be received by Executive pursuant to this Agreement (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this subsection (a), be subject to the excise tax 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 “Excise Tax”), then, subject to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to 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 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel’”), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall 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 determination 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. (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b), Executive shall pay the Excise Tax.

Certain Reductions in Payments. (a) In Anything in this Agreement to the contrary notwithstanding, in the event that any payment received payment, distribution or other benefit provided by the Corporation to or for the benefit of Executive (whether paid or payable or provided or to be received by Executive provided pursuant to the terms of this Agreement or otherwise) (“a "Payment”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this subsection (a)Section 5, be subject to the excise tax imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax Code (such excise tax, together with any interest and penalties, is hereinafter referred to as the “"Excise Tax”"), then, subject in accordance with this Section 5, such Payments shall be reduced to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to the terms of this Agreement, or (B) delivered as to such lesser extent which maximum amount that would result in no portion of such severance payments and other benefits being subject to the Excise Tax (“Reduced Amount”), whichever of the 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel’), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall 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 determination 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 being subject to the Excise Tax, then subsection but only if and to the extent that such a reduction would result in Executive's receipt of Payments that are greater than the net amount Executive would receive (bafter application of the Excise Tax) hereof if no reduction is made. The amount of required reduction, if any, shall applybe the smallest amount so that the Executive's net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and the enforcement of subsection (blocal income, employment or other taxes) shall be the exclusive remedy to the Company. (b) maximized. If, notwithstanding any reduction described in subsection (a) hereof this Section 5 (or in the absence of any such reduction), the IRS determines that Executive a Payment is liable for subject to the Excise Tax as (or subject to a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an different amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Paymentsthan determined by the Corporation or the Executive), then Section 5(c) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Paymentsapply. If the Excise Tax is not eliminated pursuant to this subsection (b)Section 5, Executive shall pay the Excise Tax. (b) All determinations required to be made under this Section 5 shall be made by the Corporation's independent auditors. Such auditors shall provide detailed supporting calculations both to the Corporation and Executive. Any such reasonable determination by the Corporation's independent auditors shall be binding upon the Corporation and Executive. The Executive shall determine which and how much of the Payments, including without limitation any option acceleration benefits provide under this Agreement or any option ("Option Benefits"), as the case may be, shall be eliminated or reduced consistent with the requirements of this Section 5, provided that, if Executive does not make such determination within ten business days of the receipt of the calculations made by the Corporation's independent auditors, the Corporation shall elect which and how much of the Option Benefits or other Payments, as the case may be, shall be eliminated or reduced consistent with the requirements of this Section 5, and then the Corporation shall notify Executive promptly of such election. Within five business days thereafter, the Corporation shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Corporation's independent auditors hereunder, it is possible that Option Benefits or other Payments, as the case may be, will have been made by the Corporation which should not have been made ("Overpayment") or that additional Option Benefits or other Payments, as the case may be, which will not have been made by the Corporation could have been made ("Underpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Corporation's independent auditors, based upon the assertion of a deficiency by the IRS against Executive or the Corporation which the Corporation's independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Corporation to or for the benefit of Executive shall be treated for all purposes as a loan ab initio to Executive which Executive shall repay to the Corporation within 30 days of receipt by Executive of written notice from the Corporation setting forth the amount of the Overpayment, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by Executive to the Corporation if and to the extent such deemed loan and payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Corporation's independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Corporation to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.

Certain Reductions in Payments. (a) In Anything in this Agreement to the contrary notwithstanding, in the event that any payment received the option acceleration benefit provided by the Company to or for the benefit of Executive (whether provided or to be received by Executive provided pursuant to the terms of this Agreement or otherwise) (“Payment”the "Option Benefits") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended 1986 ("the “Code”") and (ii) but for this subsection (a)Section 1.3, be subject to the excise tax imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax Code (such excise tax, together with any interest and penalties, is hereinafter referred to as the “"Excise Tax”"), then, subject in accordance with this Section 1.3, the Option Benefits shall be reduced to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to the terms of this Agreement, or (B) delivered as to such lesser extent which maximum amount that would result in no portion of such severance payments and other benefits the Option Benefits being subject to the Excise Tax (“Reduced Amount”), whichever of the 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel’), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall 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 determination 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, but only if and the enforcement of subsection (b) shall be the exclusive remedy to the Company. extent that such a reduction would result in Executive's receipt of a net amount that is greater than the net amount Executive would receive (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence after application of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an Tax) if no reduction is made. The amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments required reduction, if any, shall be the smallest such amount, if any, as shall be required to be paid to the Company amount so that the Executive’s 's net proceeds with respect to such Payments the Option Benefits (after taking into account the payment of the any Excise Tax imposed on such Paymentsand all federal, state and local income, employment or other taxes) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b)Section 1.3, Executive shall pay the Excise Tax. (b) All determinations required to be made under this Section 1.3 shall be made by independent auditors selected by the Company (which independent auditors may include the Company's independent auditors). Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such reasonable determination by the Company's independent auditors shall be binding upon the Company and Executive. The Executive shall determine which and how much of the Option Benefits shall be eliminated or reduced consistent with the requirements of this Section 1.3, provided that, if Executive does not make such determination within ten (10) business days of the receipt of the calculations made by the Company's independent auditors, the Company shall elect which and how much of the Option Benefits shall be eliminated or reduced consistent with the requirements of this Section 1.3, and then the Company shall notify Executive promptly of such election. Upon such determination, the Option Benefits (as adjusted pursuant to this Article 1) shall be provided to or for the benefit of the Executive.

Certain Reductions in Payments. (a) In the event that any payment received or to be received by Executive pursuant to this Agreement (“"Payment”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this subsection (a), be subject to the excise tax 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 “"Excise Tax”"), then, subject to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to 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 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“"Independent Tax Counsel’'), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall 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 '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 determination 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. (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b), Executive shall pay the Excise Tax.Reduced

Certain Reductions in Payments. (a) In the event that any payment received or to be received by Executive pursuant to this Agreement (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this subsection (a), be subject to the excise tax 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 “Excise Tax”), then, subject to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to 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 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel’), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall 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 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 determination 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. (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 thirty (30) days after a final IRS determination, an amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero ($0.00) if a Repayment Amount of more than zero ($0.00) would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b), Executive shall pay the Excise Tax.

Certain Reductions in Payments. (a) In Anything in this Agreement to the contrary notwithstanding, in the event that any payment received payment, distribution or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided or to be received by Executive provided pursuant to the terms of this Agreement or otherwise) (“a "Payment”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended 1986 ("the “Code”") and (ii) but for this subsection (a)Section 7.7, be subject to the excise tax imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax Code (such excise tax, together with any interest and penalties, is hereinafter referred to as the “"Excise Tax”"), then, subject in accordance with this Section 7.7, such Payments shall be reduced to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to the terms of this Agreement, or (B) delivered as to such lesser extent which maximum amount that would result in no portion of such severance payments and other benefits being subject to the Excise Tax (“Reduced Amount”), whichever of the 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel’), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall 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 determination 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 being subject to the Excise Tax, then subsection but only if and to the extent that such a reduction would result in Executive's receipt of Payments that are greater than the net amount Executive would receive (bafter application of the Excise Tax) hereof if no reduction is made. The amount of required reduction, if any, shall applybe the smallest amount so that the Executive's net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and the enforcement of subsection (blocal income, employment or other taxes) shall be the exclusive remedy to the Company. (b) maximized. If, notwithstanding any reduction described in subsection (a) hereof this Section 7.7 (or in the absence of any such reduction), the IRS Internal Revenue Service (the "IRS") determines that Executive a Payment is liable for subject to the Excise Tax as (or subject to a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an different amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Paymentsthan determined by the Company or the Executive), then Section 7.7(c) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Paymentsapply. If the Excise Tax is not eliminated pursuant to this subsection (b)Section 7.7, Executive shall pay the Excise Tax. (b) All determinations required to be made under this Section 7.7 shall be made by the Company's independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such reasonable determination by the Company's independent auditors shall be binding upon the Company and Executive. The Executive shall determine which and how much of the Payments, including without limitation any option acceleration benefits provide under this Agreement or any option ("Option Benefits"), as the case may be, shall be eliminated or reduced consistent with the requirements of this Section 7.7, provided that, if Executive does not make such determination within ten (10) business days of the receipt of the calculations made by the Company's independent auditors, the Company shall elect which and how much of the Option Benefits or other Payments, as the case may be, shall be eliminated or reduced consistent with the requirements of this Section 7.7, and then the Company shall notify Executive promptly of such election. Within five (5) business days thereafter, 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. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company's independent auditors hereunder, it is possible that Option Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made ("Overpayment") or that additional Option Benefits or other Payments, as the case may be, which will not have 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 Company's independent auditors, based upon the assertion of a deficiency by the IRS against Executive or the Company which the Company's independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be treated for all purposes as a loan ab initio to Executive which Executive shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by Executive to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company's independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. 7.9

Certain Reductions in Payments. (a) In the event that If any payment received or to be received by Executive pursuant to this Agreement benefit Employee would receive in connection with a change in ownership or effective control of the Company from the Company or otherwise (“Payment”) (as determined without regard to any additional payments required under this Section 4.4) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this subsection (a), be subject to the excise tax 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 “Excise Tax”), then, subject to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to 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 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 penalties on such taxes), results in the receipt by the ExecutiveEmployee, 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 Employee otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by Deloitte Touche Tohmatsu (the Company and reasonably acceptable to Executive (“Independent Tax Counsel’Consultant), whose determination shall be conclusive and binding upon the Executive Employee and the Company for all purposes. For purposes of making the calculations required under this Section 4.4, Independent Tax Counsel Consultant 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. The Company and Executive Employee shall furnish to Independent Tax Counsel Consultant such information and documents as Independent Tax Counsel Consultant may reasonably request in order to make a determination under this Section 4.4. The Company shall bear all costs that Independent Tax Counsel Consultant 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 Employee and the Company by Independent Tax CounselConsultant, Executive Employee may, in the ExecutiveEmployee’s sole discretion and within 30 days of the date which Executive Employee is provided with the information prepared by Independent Tax CounselConsultant, determine which and how much of the Payments to be otherwise received by Executive Employee shall be eliminated or reduced (as long as after such determination the value (as calculated by Independent Tax Counsel Consultant in accordance with the provisions of Sections 280G and 4999 of the Code) of the amounts payable or distributable to Executive Employee 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. (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence of any such reduction), the IRS determines that Executive Employee is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive Employee shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that ExecutiveEmployee’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b), Executive Employee shall pay the Excise Tax.

Certain Reductions in Payments. (a) In the event that any payment received or to be received by Executive pursuant to this Agreement (“"Payment”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this subsection (a), be subject to the excise tax imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax Code (such excise tax, together with any interest and penalties, is hereinafter referred to as the “"Excise Tax”"), then, subject to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant reduced, if at all, to the terms of this Agreementlargest amount which Executive, or (B) delivered as to such lesser extent which in his discretion, determines would result in no portion of maximizing Executive's net proceeds with respect to such severance payments and other benefits being subject to the Excise Tax Payments (“Reduced Amount”), whichever of the foregoing amounts, after taking into account the applicable federal, state, local and foreign income, employment and other taxes and the payment of any Excise Tax (including, without limitation, any interest or penalties imposed on such taxesPayment), results in the receipt . The determination by the Executive, on an after-tax basis, Executive 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 any required reduction pursuant to the Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive subsection (“Independent Tax Counsel’), whose determination a) shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4Company. The Company shall 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 determination the value (as calculated by Independent Tax Counsel reduce a Payment in accordance with this subsection (a) only upon written notice by Executive indicating the provisions amount of Sections 280G and 4999 of the Code) of the amounts payable or distributable to Executive hereunder equals the Reduced Amount)such reduction, if any. 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 CompanyCompany for a failure by Executive to reduce the Payment so that no portion thereof is subject to the Excise Tax. (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an amount of such Payments equal to the “"Repayment Amount.” " The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s 's net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b), Executive shall pay the Excise Tax.

Certain Reductions in Payments. (a) In Anything in this Agreement to the contrary notwithstanding, in the event that any payment received payment, distribution or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided or to be received by Executive provided pursuant to the terms of this Agreement or otherwise) (“a "Payment”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended 1986 ("the “Code”") and (ii) but for this subsection (a)Section 7.7, be subject to the excise tax imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax Code (such excise tax, together with any interest and penalties, is hereinafter referred to as the “"Excise Tax”"), then, subject in accordance with this Section 7.7, such Payments shall be reduced to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to the terms of this Agreement, or (B) delivered as to such lesser extent which maximum amount that would result in no portion of such severance payments and other benefits being subject to the Excise Tax (“Reduced Amount”), whichever of the 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel’), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall 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 determination 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 being subject to the Excise Tax, then subsection but only if and to the extent that such a reduction would result in Executive's receipt of Payments that are greater than the net amount Executive would receive (bafter application of the Excise Tax) hereof if no reduction is made. The amount of required reduction, if any, shall applybe the smallest amount so that the Executive's net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and the enforcement of subsection (blocal income, employment or other taxes) shall be the exclusive remedy to the Company. (b) maximized. If, notwithstanding any reduction described in subsection (a) hereof this Section 7.7 (or in the absence of any such reduction), the IRS Internal Revenue Service (the "IRS") determines that Executive a Payment is liable for subject to the Excise Tax as (or subject to a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an different amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Paymentsthan determined by the Company or the Executive), then Section 7.7(c) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Paymentsapply. If the Excise Tax is not eliminated pursuant to this subsection (b)Section 7.7, Executive shall pay the Excise Tax. (b) All determinations required to be made under this Section 7.7 shall be made by the Company's independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such reasonable determination by the Company's independent auditors shall be binding upon the Company and Executive. The Executive shall determine which and how much of the Payments, including without limitation any option acceleration benefits provide under this Agreement or any option ("Option Benefits"), as the case may be, shall be eliminated or reduced consistent with the requirements of this Section 7.7, provided that, if Executive does not make such determination within ten (10) business days of the receipt of the calculations made by the Company's independent auditors, the Company shall elect which and how much of the Option Benefits or other Payments, as the case may be, shall be eliminated or reduced consistent with the requirements of this Section 7.7, and then the Company shall notify Executive promptly of such election. Within five (5) business days thereafter, 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. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company's independent auditors hereunder, it is possible that Option Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made ("Overpayment") or that additional Option Benefits or other Payments, as the case may be, which will not have 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 Company's independent auditors, based upon the assertion of a deficiency by the IRS against Executive or the Company which the Company's independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be treated for all purposes as a loan ab initio to Executive which Executive shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by Executive to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company's independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.

Certain Reductions in Payments. (aA) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment received or distribution by the Corporation 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 (after taking into account any value attributable to the restrictive covenants in Section 9) be received nondeductible by the Corporation for Federal income tax purposes because of Section 280G of the Code, then the 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 “PaymentAgreement Payments”) would (i) constitute shall be reduced in such a “parachute payment” within way that their aggregate present value shall be equal to the meaning 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 Corporation because of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this subsection (a), be subject after taking into account any value attributable to the excise tax imposed by restrictive covenants in Section 4999 9). For purposes of this Section 5, present value shall be determined in accordance with Section 280G(d)(4) 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 “Excise Tax”), then, subject to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to the terms of this Agreement, or . (B) delivered as All determinations required 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 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required made under this Section 4.4 5 shall be made by independent tax counsel an independent, nationally recognized accounting firm designated by the Company and reasonably acceptable Corporation prior to Executive a Change in Control (the “Independent Tax Counsel’Accounting Firm”); provided that if the Accounting Firm is not willing or able to value the restrictive covenants in Section 9, whose determination then the restrictive covenants shall be conclusive and valued by an independent third-party valuation specialist selected by the Corporation prior to a Change in Control. All determinations made by the Accounting Firm (or, with respect to the valuation of the restrictive covenants in Section 9, to the extent applicable, the independent third-party valuation specialist) under this Section 5 shall be binding upon the Corporation and the Executive and shall be made within thirty (30) business days after a termination of the Company for all purposesExecutive’s employment or such earlier date as requested by the Corporation. For purposes The reduction of making the calculations required Agreement Payments to the Reduced Amount, if applicable, shall be made by reducing the Agreement Payments under this the following sections (and no other Payments) in the following order: (i) Section 4.44(B), Independent Tax Counsel may make reasonable assumptions (ii) Section 4(A)(iii), (iii) Section 4(C), and approximations concerning applicable taxes (iv) Section 4(D). All fees and may rely on reasonable, good faith interpretations concerning expenses of the Accounting Firm and the independent third-party valuation specialist (if any) shall be borne solely by the Corporation. (C) As a result of the uncertainty in the application of Sections 280G and 4999 of the Code. The Company and Executive shall furnish 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 Corporation which should not have been made (“Overpayment”) or that additional Agreement Payments which will have not been made by the Corporation could have been made (“Underpayment”), in each case, consistent with the calculations required to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall bear all costs that Independent Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 4.4be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Corporation or the Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, the Executive shall pay any such Overpayment to the Corporation together with interest at the applicable federal rate provided for in Section 4.4(a)(ii)(B7872(f)(2) 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 Code; provided, however, that no amount shall be payable by the Executive to the Corporation if and to the extent such payment would not either reduce the amount on which the Executive is provided with the information prepared by Independent Tax Counsel, determine which and how much of the Payments subject to be otherwise received by Executive shall be eliminated or reduced (as long as after such determination the value (as calculated by Independent Tax Counsel in accordance with the provisions of tax under Sections 280G 1 and 4999 of the CodeCode or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Corporation to or for the benefit of the Executive (subject to Section 6) together with interest at the applicable federal rate provided for in Section 7872(f)(2) 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 CompanyCode. (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b), Executive shall pay the Excise Tax.

Certain Reductions in Payments. (a) In the event that any payment received or to be received by Executive pursuant to this Agreement (“"Payment”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this subsection (a), be subject to the excise tax 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 collectively referred to as the “"Excise Tax”"), then, subject to the provisions of subsection (bc) hereof, such Payment shall be either (A) delivered in full pursuant to 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”"Net Payment"), whichever of the 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 penalties on such taxes), results in the receipt by the Executive, on an after-tax basis, of the greatest amount of severance payments and benefits provided for hereunderpayable under this Agreement or otherwise, 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 determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“"Independent Tax Counsel’"), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall bear all costs that Independent Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 4.4. . (b) In the event that Section 4.4(a)(ii)(BExecutive is entitled only to the Net Payment pursuant to subsection (a) above applieshereof, then based on the information provided to Executive and the Company by Independent Tax Counsel, Executive may, in the Executive’s 's sole discretion and within 30 days of the date on which Executive is provided with the information prepared by Independent Tax Counsel, determine which and how much the composition of the Payments to be otherwise received by Executive shall be eliminated or reduced Net Payment (as long as after such determination 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 selected by Executive hereunder equals the Reduced AmountNet Payment). If the Internal Revenue Service (the “"IRS”") determines that a the Net Payment is subject to the Excise Tax, then subsection (bc) hereof shall apply, and the enforcement of subsection (bc) shall be the exclusive remedy to the Company. (bc) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of one either the Payment or more Paymentsthe Net Payment, as applicable, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an amount of such Payments equal to the “"Repayment Amount.” " The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments Executive shall receive, on an after-tax basis, the greatest amount of severance payments and benefits payable under this Agreement or otherwise (after taking into account the payment of the any Excise Tax imposed on such Payments) amounts). If the Executive previously received the Net Payment and in light of the IRS determination the Independent Tax Counsel now determines that Executive shall be maximizedreceive, on an after-tax basis, the greatest amount of severance payments and benefits payable under this Agreement or otherwise by receiving the unreduced Payment and then paying the Excise Tax, the Company shall promptly deliver to Executive in cash any portion of the value of the Payment not previously delivered and Executive shall pay the Excise Tax. Notwithstanding the foregoingFurthermore, if for any reason the Repayment Amount with respect to such Payments shall be the Payment is zero if and as a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments. If result the Excise Tax is not eliminated pursuant to this subsection (b)eliminated, Executive shall pay the Excise Tax.

Certain Reductions in Payments. (a) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment received or distribution by the Company or its affiliated companies to be received by or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any adjustment required under this Section 4) (“Payment”in the aggregate, the "Total Payments") would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this subsection (a), be subject to the excise tax imposed by Section 4999 of the CodeCode (the "Excise Tax"), or any comparable federaland if it is determined that (A) the amount remaining, stateafter the Total Payments are reduced by an amount equal to all applicable federal and state taxes (computed at the highest applicable marginal rate), local or foreign excise tax (such excise tax, together with any interest and penaltiesincluding the Excise Tax, is hereinafter referred less than (B) the amount remaining, after taking into account all applicable federal and state taxes (computed at the highest applicable marginal rate), after payment or distribution to as or for the “benefit of the Executive of the maximum amount that may be paid or distributed to or for the benefit of the Executive without resulting in the imposition of the Excise Tax”), then, subject to then the provisions of subsection payments due hereunder shall be reduced so that the Total Payments are One Dollar ($1) less than such maximum amount. (b) hereofAll determinations required to be made under this Section 4, including whether and when a reduction in the amount payable hereunder pursuant to Section 4(a) is required and the amount of any such Payment reduction and the assumptions to be utilized in arriving at such determination, shall be either (A) delivered in full pursuant to 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 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 penalties on such taxes), results in the receipt made by the Executive, on an after-tax basis, of Company's public accounting firm (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 "Accounting -7- Firm") which shall provide detailed supporting calculations both to the Excise Tax. Unless the Company and the Executive otherwise agree in writingwithin 15 business days of the receipt of notice from the Executive that there has been a Payment, any determination required under this Section 4.4 shall be made by independent tax counsel designated or such earlier time as is requested by the Company and reasonably acceptable to Executive (“Independent Tax Counsel’), whose determination shall be conclusive and binding upon or the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall bear all costs that Independent Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 4.4Executive. In the event that Section 4.4(a)(ii)(B) above appliesthe Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Executive shall appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then based on be referred to as the information provided to Executive Accounting Firm hereunder). All fees and the Company by Independent Tax Counsel, Executive may, in the Executive’s sole discretion and within 30 days expenses 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 Accounting Firm shall be eliminated or reduced (as long as after such determination borne solely by 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)Company. If the Internal Revenue Service (the “IRS”) Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a Payment is subject written opinion that failure to the Excise Tax, then subsection (b) hereof shall apply, and the enforcement of subsection (b) shall be the exclusive remedy to the Company. (b) If, notwithstanding any reduction described in subsection (a) hereof (or in the absence of any such reduction), the IRS determines that Executive is liable for report the Excise Tax as on the Executive's applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company, the Subsidiary and the Executive. As a result of the receipt uncertainty in the application of one or more PaymentsSection 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, then Executive shall be obligated it is possible that the reduction in the amount payable hereunder pursuant to pay back to Section 4(a) will not have been made consistent with the Company, within 30 days after a final IRS determination, an amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be calculations required to be paid made hereunder. In that event the Executive thereafter shall promptly pay to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment amount of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments. If the Excise Tax is not eliminated pursuant to this subsection (b), Executive shall pay the Excise Taxrequired reduction.

Certain Reductions in Payments. (a) In Anything in this Agreement to the contrary notwithstanding, in the event that any payment received payment, distribution or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided or to be received by Executive provided pursuant to the terms of this Agreement or otherwise) (“a "Payment”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended 1986 ("the “Code”") and (ii) but for this subsection (a)Section 4.2, be subject to the excise tax imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax Code (such excise tax, together with any interest and penalties, is hereinafter referred to as the “"Excise Tax”"), then, subject in accordance with this Section 4.2, such Payments shall be reduced to the provisions of subsection (b) hereof, such Payment shall be either (A) delivered in full pursuant to the terms of this Agreement, or (B) delivered as to such lesser extent which maximum amount that would result in no portion of such severance payments and other benefits being subject to the Excise Tax (“Reduced Amount”), whichever of the 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 penalties on such taxes), results in the receipt by the 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 Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 4.4 shall be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel’), whose determination shall be conclusive and binding upon the Executive and 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. The Company and Executive shall furnish to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination under this Section 4.4. The Company shall 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 determination 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 being subject to the Excise Tax, then subsection but only if and to the extent that such a reduction would result in Executive's receipt of Payments that are greater than the net amount Executive would receive (bafter application of the Excise Tax) hereof if no reduction is made. The amount of required reduction, if any, shall applybe the smallest amount so that the Executive's net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and the enforcement of subsection (blocal income, employment or other taxes) shall be the exclusive remedy to the Company. (b) maximized. If, notwithstanding any reduction described in subsection (a) hereof this Section 4.2 (or in the absence of any such reduction), the IRS Internal Revenue Service (the "IRS") determines that Executive a Payment is liable for subject to the Excise Tax as (or subject to a result of the receipt of one or more Payments, then Executive shall be obligated to pay back to the Company, within 30 days after a final IRS determination, an different amount of such Payments equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the Excise Tax imposed on such Paymentsthan determined by the Company or the Executive), then Section 4.2(c) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Paymentsapply. If the Excise Tax is not eliminated pursuant to this subsection (b)Section 4.2, Executive shall pay the Excise Tax. (b) All determinations required to be made under this Section 4.2 shall be made by the Company's independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such reasonable determination by the Company's independent auditors shall be binding upon the Company and Executive. The Executive shall determine which and how much of the Payments, including without limitation any option acceleration benefits provided under this Agreement or any option ("Option Benefits"), as the case may be, shall be eliminated or reduced consistent with the requirements of this Section 4.2, provided that, if Executive does not make such determination within ten (10) business days of the receipt of the calculations made by the Company's independent auditors, the Company shall elect which and how much of the Option Benefits or other Payments, as the case may be, shall be eliminated or reduced consistent with the requirements of this Section 4.2, and 5 then the Company shall notify Executive promptly of such election. Within five (5) business days thereafter, 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. (c) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company's independent auditors hereunder, it is possible that Option Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made ("Overpayment") or that additional Option Benefits or other Payments, as the case may be, which will not have 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 Company's independent auditors, based upon the assertion of a deficiency by the IRS against Executive or the Company which the Company's independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be treated for all purposes as a loan ab initio to Executive which Executive shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by Executive to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company's independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.