Common use of Code Section 280G Clause in Contracts

Code Section 280G. The benefits that the Executive may be entitled to receive under this Agreement and other benefits that the Executive is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are subject to Code Sections 280G and 4999. As provided in this Section 13, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will receive the Capped Payments, the total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 13, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 13 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.

Code Section 280G. This Section 12 applies if either the Executive or the Company is subject to the Code. The benefits that the Executive may be entitled to receive under this Agreement and other benefits that the Executive is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are subject to Code Sections 280G and 49994999 of the Code. As provided in this Section 1312, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 of the Code (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will receive the Capped Payments, the total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 of the Code at the time that the Accounting Firm makes its determinations under this Section 1312, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 13 12 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 12 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made except to the extent permitted by applicable law and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 of the Code or generate a refund of tax imposed under Code Section 49994999 of the Code. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.

Code Section 280G. The benefits that the Executive may be entitled to receive under this Agreement and other benefits that the Executive is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are subject to Code Sections 280G and 4999. As provided in this Section 1312, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will receive the Capped Payments, the total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 1312, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 13 12 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 12 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.

Code Section 280G. The Notwithstanding any other provision of this Agreement, if it is determined that benefits that the Executive may be entitled to receive or payments payable under this Agreement and Agreement, taking into account other benefits that the Executive is entitled to receive or payments provided under other plans, agreements and arrangements (whichor arrangements, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are would subject to Code Sections 280G and 4999. As provided in this Section 13, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 (section 4999, it must be determined whether the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Reduced Amount. If the The Executive will receive the Capped Reduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from the Executive receiving the total Parachute Payments, . If it is determined that the total Parachute Payments will should be adjusted reduced to the Reduced Amount, the Company must promptly notify the Executive of that determination, including a copy of the detailed calculations by first reducing an accounting firm or other professional organization qualified to make the amount calculation that was selected by the Company and acceptable to the Executive (the “Accounting Firm”). The Company shall pay the fees and expenses of any benefits the Accounting Firm. All determinations made by the Accounting Firm under this Section 5 are binding upon the Company and the Executive. It is the intention of the Company and the Executive to reduce the Parachute Payments under this Agreement or and any other plan, agreement or arrangement that are not subject only if the aggregate Net After Tax Receipts to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must would thereby be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determinationincreased. As a result of the uncertainty in the application of Code Sections 280G and section 4999 at the time that of the initial determination by the Accounting Firm makes its determinations under this Section 13Firm, however, it is possible that amounts will have been paid or distributed to or for the benefit of the Executive which should not have been so paid or distributed (“Overpayment”) or that should additional amounts which will not have been paid or distributed under this Section 13 to or for the benefit of the Executive should have been so paid or distributed (“OverpaymentsUnderpayment”), or that additional amounts should be paid or distributed to in each case, consistent with the Executive under this Section 13 (“Underpayments”)calculation of the Reduced Amount. If the Accounting Firm determinesFirm, based on either upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, Executive which assertion the Accounting Firm believes has a high probability of success or controlling precedent or other substantial authority, determines that an Overpayment has been made, any such Overpayment must be treated (if permitted by applicable law) for all purposes as a loan ab initio for which the Executive must repay to the Company, without interestCompany together with interest at the applicable federal rate under Code section 7872(f)(2); provided, however, that no such loan will may be deemed to have been made and no amount will shall be payable by the Executive to the Company unless, if and then only to the extent that, the such deemed loan and payment would not either reduce the amount on which the Executive is subject to tax under Code Section section 4999 or generate a refund of tax imposed under Code Section 4999such taxes. If the Accounting Firm determinesFirm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, the Accounting Firm will must promptly notify the Executive and the Company of that determination and the amount of that the Underpayment will and such amount, together with interest at the applicable federal rate under Code section 7872(f)(2) must be paid to the Executive promptly Executive. If it is determined that the total Parachute Payments should be reduced to the Reduced Amount, then the reduction shall first apply to Parachute Payments that are not subject to Code section 409A (and by the Companyfirst reducing such payments that are not payable in cash and then by reducing cash payments) and thereafter, if necessary, by reducing Parachute Payments that are subject to Code section 409A (and by first reducing such payments that are not payable in cash and then by reducing cash payments).

Code Section 280G. The benefits Notwithstanding any other provision of this Agreement, if it is determined that the Executive may be entitled to receive benefits or payments payable under this Agreement and Agreement, taking into account other benefits that the Executive is entitled to receive or payments provided under other plans, agreements and arrangements (whichor arrangements, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are would subject to Code Sections 280G and 4999. As provided in this Section 13, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 (of the “Capped Payments”). ThereafterCode, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The it must be determined whether Executive will receive the total Parachute Payments payments due or the Capped Payments, whichever provides the Executive with the higher Net After Tax Reduced Amount. If the Executive will receive the Capped PaymentsReduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from Executive receiving the total payments due. If it is determined that the total payments should be reduced to the Reduced Amount, the total Parachute Payments will be adjusted Company must promptly notify Executive of that determination, including a copy of the detailed calculations by first reducing an accounting firm or other professional organization qualified to make the amount calculation that was selected by the Company and acceptable to Executive (the “Accounting Firm”). The Company shall pay the fees and expenses of the Accounting Firm. All determinations made by the Accounting Firm under this SECTION 6.16 are binding upon the Company and Executive, subject to any benefits differing determination by the Internal Revenue Service. It is the intention of the Company and Executive to reduce the payments under this Agreement or and any other plan, agreement or arrangement that are not subject only if the aggregate Net After Tax Receipts to Section 409A of the Code (with the source of the reduction to Executive would thereby be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant)increased. The Accounting Firm will notify the Executive and the Company if If it determines is determined that the Parachute Payments must total payments should be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty Reduced Amount, any reduction shall be in the application order that would provide Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Sections Section 280G and 4999 409A be designated by Executive. Executive shall at any time have the time that the Accounting Firm makes its determinations under this Section 13, it is possible that amounts will have been paid unilateral right to forfeit any equity grant in whole or distributed to the Executive that should not have been paid or distributed under this Section 13 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Companyin part.

Code Section 280G. The benefits that the Executive may be entitled to receive under this Agreement and other benefits that the Executive is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are subject to Code Sections 280G and 49994999 of the Code. As provided in this Section 1312, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 of the Code (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will receive the Capped Payments, the total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 of the Code at the time that the Accounting Firm makes its determinations under this Section 1312, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 13 12 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 12 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 of the Code or generate a refund of tax imposed under Code Section 49994999 of the Code. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.

Code Section 280G. The benefits that the Executive may be entitled to receive under this Agreement and other benefits that the Executive is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are subject to Code Sections 280G and 4999. As provided in this Section 136, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will receive the Capped Payments, the total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 136, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 13 6 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 6 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.

Code Section 280G. The Notwithstanding any other provision of this Agreement, if it is determined that benefits that the Executive may be entitled to receive or payments payable under this Agreement and Agreement, taking into account other benefits that the Executive is entitled to receive or payments provided under other plans, agreements and arrangements (whichor arrangements, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are would subject to Code Sections 280G and 4999. As provided in this Section 13, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 (section 4999, it must be determined whether the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Reduced Amount. If the The Executive will receive the Capped Reduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from the Executive receiving the total Parachute Payments, . If it is determined that the total Parachute Payments will should be adjusted reduced to the Reduced Amount, the Company must promptly notify the Executive of that determination, including a copy of the detailed calculations by first reducing the amount independent accounting firm engaged to audit the Company’s financial statements (the “Accounting Firm”). All determinations made by the Accounting Firm under this Section 5 are binding upon the Company and the Executive. It is the intention of any benefits the Company and the Executive to reduce the Parachute Payments under this Agreement or and any other plan, agreement or arrangement that are not subject only if the aggregate Net After Tax Receipts to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must would thereby be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determinationincreased. As a result of the uncertainty in the application of Code Sections 280G and section 4999 at the time that of the initial determination by the Accounting Firm makes its determinations under this Section 13Firm, however, it is possible that amounts will have been paid or distributed to or for the benefit of the Executive which should not have been so paid or distributed (“Overpayment”) or that should additional amounts which will not have been paid or distributed under this Section 13 to or for the benefit of the Executive should have been so paid or distributed (“OverpaymentsUnderpayment”), or that additional amounts should be paid or distributed to in each case, consistent with the Executive under this Section 13 (“Underpayments”)calculation of the Reduced Amount. If the Accounting Firm determinesFirm, based on either upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, Executive which assertion the Accounting Firm believes has a high probability of success or controlling precedent or other substantial authority, determines that an Overpayment has been made, any such Overpayment must be treated (if permitted by applicable law) for all purposes as a loan ab initio for which the Executive must repay to the Company, without interestCompany together with interest at the applicable federal rate under Code section 7872(f)(2); provided, however, that no such loan will may be deemed to have been made and no amount will shall be payable by the Executive to the Company unless, if and then only to the extent that, the such deemed loan and payment would not either reduce the amount on which the Executive is subject to tax under Code Section section 4999 or generate a refund of tax imposed under Code Section 4999such taxes. If the Accounting Firm determinesFirm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, the Accounting Firm will must promptly notify the Executive and the Company of that determination and the amount of that the Underpayment will and such amount, together with interest at the applicable federal rate under Code section 7872(f)(2) must be paid to the Executive promptly Executive. If it is determined that the total Parachute Payments should be reduced to the Reduced Amount, then the reduction shall first apply to Parachute Payments that are not subject to Code section 409A (and by the Companyfirst reducing such payments that are not payable in cash and then by reducing cash payments) and thereafter, if necessary, by reducing Parachute Payments that are subject to Code section 409A (and by first reducing such payments that are not payable in cash and then by reducing cash payments).

Code Section 280G. The benefits that the Executive may be entitled to receive under this Agreement and other benefits that the Executive is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are subject to Code Sections 280G and 49994999 of the Code. As provided in this Section 1312, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 of the Code (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will receive the Capped Payments, the total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing proportionally the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant)Code. The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 of the Code at the time that the Accounting Firm makes its determinations under this Section 1312, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 13 12 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 12 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive, which assertion the Accounting Firm reasonably believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 of the Code or generate a refund of tax imposed under Code Section 49994999 of the Code. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.

Code Section 280G. The benefits that the Executive may be entitled to receive under this Agreement and other benefits that the Executive is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are subject to Code Sections 280G and 49994999 of the Code. As provided in this Section 1312, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 of the Code (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will receive the Capped Payments, the total Parachute Payments will be adjusted reduced until the value of the remaining Parachute Payments for purposes of Section 280G of the Code equals the Capped Amount. The reduction shall be effected by the Committee by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section 409A of the Code (with by reducing such benefits in the source order that maximizes the reduction in the value of the reduction to be directed by Parachute Payments under Section 280G of the ParticipantCode) and then by the Committee reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with by reducing such benefits in the source order that maximizes the reduction in the value of the reduction to be directed by Parachute Payments under Section 280G of the ParticipantCode). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 of the Code at the time that the Accounting Firm makes its determinations under this Section 1312, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 13 12 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 12 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay such Overpayment to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 of the Code or generate a refund of tax imposed under Code Section 49994999 of the Code. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.

Code Section 280G. The Notwithstanding any other provision of this Agreement, if it is determined that benefits that the Executive may be entitled to receive or payments payable under this Agreement and Agreement, taking into account other benefits that the Executive is entitled to receive or payments provided under other plans, agreements and arrangements (whichor arrangements, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are would subject to Code Sections 280G and 4999. As provided in this Section 13, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 (section 4999, it must be determined whether the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Reduced Amount. If the The Executive will receive the Capped Reduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from the Executive receiving the total Parachute Payments, . If it is determined that the total Parachute Payments will should be adjusted reduced to the Reduced Amount, the Company must promptly notify the Executive of that determination, including a copy of the detailed calculations by first reducing an accounting firm or other professional organization qualified to make the amount calculation that was selected by the Company and acceptable to the Executive (the “Accounting Firm”). The Company shall pay the fees and expenses of any benefits the Accounting Firm. All determinations made by the Accounting Firm under this Section 5 are binding upon the Company and the Executive. It is the intention of the Company and the Executive to reduce the Parachute Payments under this Agreement or and any other plan, agreement or arrangement that are not subject only if the aggregate Net After Tax Receipts to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must would thereby be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determinationincreased. As a result of the uncertainty in the application of Code Sections 280G and section 4999 at the time that of the initial determination by the Accounting Firm makes its determinations under this Section 13Firm, however, it is possible that amounts will have been paid or distributed to or for the benefit of the Executive which should not have been so paid or distributed (“Overpayment”) or that should additional amounts which will not have been paid or distributed under this Section 13 to or for the benefit of the Executive should have been so paid or distributed (“OverpaymentsUnderpayment”), or that additional amounts should be paid or distributed to in each case, consistent with the Executive under this Section 13 (“Underpayments”)calculation of the Reduced Amount. If the Accounting Firm determinesFirm, based on either upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, Executive which assertion the Accounting Firm believes has a high probability of success or controlling precedent or other substantial authority, determines that an Overpayment has been made, any such Overpayment must be treated (if permitted by applicable law) for all purposes as a loan ab initio for which the Executive must repay to the Company, without interestCompany together with interest at the applicable federal rate under Code section 7872(f)(2); provided, however, that no such loan will may be deemed to have been made and no amount will shall be payable by the Executive to the Company unless, if and then only to the extent that, the such deemed loan and payment would not either reduce the amount on which the Executive is subject to tax under Code Section section 4999 or generate a refund of tax imposed under Code Section 4999such taxes. If the Accounting Firm determinesFirm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, the Accounting Firm will must promptly notify the Executive and the Company of that determination and the amount of that the Underpayment will and such amount, together with interest at the applicable federal rate under Code section 7872(f)(2), must be paid to the Executive promptly by Executive. If it is determined that the Companytotal Parachute Payments should be reduced to the Reduced Amount, then such reduction shall be applied in the following order: (i) payments that are payable in cash that are valued at full value under Treasury Regulation section 1.280G-1, Q&A 24(a) will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments due in respect of any equity valued at full value under Treasury Regulation section 1.280G-1, Q&A 24(a) will be reduced next (if necessary, to zero), with amounts that are payable or deliverable last reduced first; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation section 1.280G-1, Q&A 24 will be reduced next (if necessary, to zero), with the highest values reduced first (as such values are determined under Treasury Regulation section 1.280G-1, Q&A 24); (iv) payments due in respect of any equity valued at less than full value under Treasury Regulation section 1.280G-1, Q&A 24 will be reduced next (if necessary, to zero), with the highest values reduced first (as such values are determined under Treasury Regulation section 1.280G-1, Q&A 24); and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) will be next reduced pro-rata.

Code Section 280G. The benefits that the Executive may be entitled to receive under this Agreement and other benefits that the Executive is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are subject to Code Sections 280G and 49994999 of the Code. As provided in this Section 1311, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 of the Code (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will receive the Capped Payments, the total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 of the Code at the time that the Accounting Firm makes its determinations under this Section 1311, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 13 11 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 11 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 of the Code or generate a refund of tax imposed under Code Section 49994999 of the Code. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.

Code Section 280G. The benefits that the Executive may be entitled to receive under this Agreement and other benefits that the Executive is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are subject to Code Sections 280G and 49994999 of the Code. As provided in this Section 1314, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 of the Code (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will receive the Capped Payments, the total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 of the Code at the time that the Accounting Firm makes its determinations under this Section 1314, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 13 14 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 14 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 of the Code or generate a refund of tax imposed under Code Section 49994999 of the Code. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.

Code Section 280G. The benefits that the Executive may be entitled to receive under this Agreement and other benefits that the Executive is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are subject to Code Sections 280G and 4999. As provided in this Section 135, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. The Executive will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will receive the Capped Payments, the total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the Participant). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 135, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 13 5 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 5 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.

Code Section 280G. The benefits that the Executive Employee may be entitled to receive under this Agreement and other benefits that the Executive Employee is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), ) may constitute Parachute Payments that are subject to Code Sections 280G and 4999. As provided in this Section 1311, the Parachute Payments will be reduced if, and only to the extent that, a reduction will allow the Executive Employee to receive a greater Net After Tax Amount than the Executive Employee would receive absent a reduction. The Accounting Firm Company, or its designee, will first determine the amount of any Parachute Payments that are payable to the ExecutiveEmployee. The Accounting Firm Company, or its designee, also will determine the Net After Tax Amount attributable to the ExecutiveEmployee’s total Parachute Payments. The Accounting Firm Company, or its designee, will next determine the largest amount of Payments that may be made to the Executive Employee without subjecting the Executive Employee to tax under Code Section 4999 (the “Capped Payments”). Thereafter, the Accounting Firm Company, or its designee, will determine the Net After Tax Amount attributable to the Capped Payments. The Executive Employee will receive the total Parachute Payments or the Capped Payments, whichever provides the Executive Employee with the higher Net After Tax Amount. If the Executive Employee will receive the Capped Payments, the total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section 409A of the Code (with the source of the reduction to be directed by the ParticipantEmployee) and then by reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section 409A of the Code (with the source of the reduction to be directed by the ParticipantEmployee). The Accounting Firm Company, or its designee, will notify the Executive and the Company Employee if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company Employee a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm Company, or its designee, makes its determinations under this Section 1311, it is possible that amounts will have been paid or distributed to the Executive Employee that should not have been paid or distributed under this Section 13 11 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive Employee under this Section 13 11 (“Underpayments”). If the Accounting Firm Company, or its designee, determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the ExecutiveEmployee, which assertion the Accounting Firm Company, or its designee, believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive Employee must repay such Overpayment to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive Employee to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive Employee is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm Company, or its designee, determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.controlling

Code Section 280G. (a) The severance pay and other payments, distributions and benefits that provided by the Executive may be entitled Company to receive under or for your benefit pursuant to this Agreement and other benefits that the Executive is entitled to receive under other plans, programs, and agreements and arrangements (which, together with the benefits provided under this Agreement, are referred to as “Payments”), may constitute Parachute Payments that are subject to the “golden parachute” rules of Code Sections section 280G and the excise tax of Code section 4999. As provided in this Section 13, the The Company and you intend to reduce any Parachute Payments will be reduced (but not any payment, distribution or other benefit that is not a Parachute Payment) if, and only to the extent that, a reduction will allow the Executive you to receive a greater Net After Tax Amount than the Executive you would receive absent a reduction. The remaining provisions of this subsection describe how that intent will be effectuated. (b) The Accounting Firm will first determine the amount of any Parachute Payments that are payable to the Executiveyou. The Accounting Firm will also will determine the Net After Tax Amount attributable to the Executive’s your total Parachute Payments. (c) The Accounting Firm will next determine the largest amount of Payments that may be made to the Executive without subjecting the Executive to tax under Code Section 4999 (the “your Capped Parachute Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the your Capped Parachute Payments. The Executive (d) You will receive the total Parachute Payments or unless the Accounting Firm determines that the Capped Payments, whichever provides the Executive with the Parachute Payments will yield you a higher Net After Tax Amount. If the Executive , in which case you will receive the Capped Parachute Payments. If you will receive the Capped Parachute Payments, the your total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are not subject to Section Code section 409A of the Code (with the source of the reduction to be directed and by the Participant) and then by next reducing the amount of any benefits under this Agreement or any other plan, agreement or arrangement that are subject to Section Code section 409A of the Code (in each case with the source of the reduction to be directed by the Participantreductions first coming from cash benefits and then from noncash benefits). The Accounting Firm will notify the Executive you and the Company if it determines that the Parachute Payments must be reduced to the Capped Parachute Payments and will send the Executive you and the Company a copy of its detailed calculations supporting that determination. As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 13, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 13 (“Overpayments”), or that additional amounts should be paid or distributed to the Executive under this Section 13 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of that Underpayment will be paid to the Executive promptly by the Company.8