Common use of Excise Tax Limitation Clause in Contracts

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change of Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 5, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for under this Agreement and (B) any other compensation earned by the Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change of Control. (b) The Parties hereby recognize that the restrictive covenants under Section 6 have value that is equivalent in amount to some or all of the Severance Amount (and potentially other termination benefits) and that such value shall be recognized in the Code Section 280G calculations contemplated hereunder. The Independent Advisor shall make the determination of the actual fair market value of the restrictive covenants under Section 6 at the time of the Change of Control.

Excise Tax Limitation. (a) It is Notwithstanding anything in this Agreement to the intention of the Parties that no contrary, if any portion of any payment payments to Executive by the Company under this Agreement, Agreement and any other present or payments to or for the benefit future plan of the Company or other present or future agreement between Executive under and the Company would not be deductible by the Company (collectively, "Payments") for federal income tax purposes by reason of application of Section 162(m) of the Internal Revenue Code (the "Code"), then payment of that portion to Executive shall be deferred until the earliest date upon which payment thereof can be made to Executive without being non-deductible pursuant to Section 162(m) of the Code. In the event of such deferral, the Company shall pay interest to Executive on the deferred amount at 120% of the applicable federal rate provided for in Section 1274(d)(1) of the Code. In addition, notwithstanding any other agreement or planprovision of this Agreement to the contrary, be deemed to be an Excess Parachute Payment. The the aggregate present value of the payments and benefits (excluding those payments and benefits not treated as parachute payments under Code Section 28OG(b)) to be made or for the benefit of provided to the Executive in by the nature of compensation, receipt of which is contingent on a Change of Control, and Company (whether pursuant to which Code Section 280G applies (in the aggregate “Total Payments”this Agreement or otherwise) shall not exceed an amount equal to three times the Executive's annualized includible compensation for the base period, as defined in Code Section 28OG(d) of the Code, minus one dollar ($1.00) less than (the maximum amount "Limited Payment Amount"), and any excess payments or benefits shall be forfeited; provided, however, that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes forfeiture provision of this Agreement sentence shall be calculated apply only if such forfeiture provision results in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company larger aggregate after-tax payments and benefits to the Executive than if the forfeiture provision did not apply. The of its belief that there this portion of this subsection 5(a) is a to prevent any payment or benefit due to the Executive that will from being subject to the excise tax imposed by Code Section 4999 and to prevent any item of expense or deduction of the Company from being disallowed as a result in an Excess Parachute Payment, of the Parties, at the Company’s expense, shall obtain the opinion application of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined under Code Section 280G, but only if the after-tax payments and benefits payable or provided to the Executive are greater after application of the forfeiture provision than if the forfeiture provision did not apply. The interpretation of this subsection 5(a), (B) its application to any occurrence or event, the determination of whether any payment or benefit would not be treated as a parachute payment, the determination of the aggregate present value of Total Payments all payments and (C) benefits to be made or provided to the amount and present Executive, the determination of the value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder payments and benefits payable or any other payment determined by such Independent Advisor to be includable in Total Payments provided to the Executive after reduction for all applicable taxes, and what specific payments or benefits otherwise available to the Executive shall be modified, reduced limited or eliminated, in accordance with Code Section 409A, as specified eliminated by operation of this subsection 5(a) shall be reasonably made by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 5, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for under this Agreement and (B) any other compensation earned by the Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change of Controlbinding on all persons. (b) The Parties hereby recognize that An initial determination as to whether the restrictive covenants under Section 6 have value Payments shall be reduced to the Limited Payment Amount and the amount of such Limited Payment Amount shall be made, at the Company's expense, by the accounting firm that is equivalent in amount to some or all the Company's independent accounting firm as of the Severance Amount (and potentially other termination benefits) and that such value shall be recognized in the Code Section 280G calculations contemplated hereunder. The Independent Advisor shall make the determination of the actual fair market value of the restrictive covenants under Section 6 at the time date of the Change in Control (the "Accounting Firm"). The Accounting Finn xxxll provide its determination (the "Determination", together with detailed supporting calculations and documentation, to the Company and the Executive within twenty (20) days of Controlthe Termination Date if applicable, or such other time as requested by the Company or by the Executive (provided the Executive reasonably believes that any of the Payments may be subject to the Excise Tax), and if the Accounting Firm determines that there is substantial authority (within the meaning of Section 6662 of the Code) that no Excise Tax is payable by the Executive with respect to a Payment or Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such Payment or Payments. Within ten (I 0) days of the delivery of the Determination to the Executive, the Executive shall have the night to dispute the Determination (the "Dispute"). If there is no Dispute, the Determination shall be binding, final and conclusive upon the Company and the Executive.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change of Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s 's expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s 's applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s 's receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 5, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for under this Agreement and (B) any other compensation earned by the Executive pursuant to the Company’s 's compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change of Control. (b) The Parties hereby recognize that the restrictive covenants under Section 6 have value that is equivalent in amount to some or all of the Severance Amount (and potentially other termination benefits) and that such value shall be recognized in the Code Section 280G calculations contemplated hereunder. The Independent Advisor shall make the determination of the actual fair market value of the restrictive covenants under Section 6 at the time of the Change of Control.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change of in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 57, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for under this Agreement in Section 5 and (B) any other compensation earned by the Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change of in Control. (b) The Parties hereby recognize that the restrictive covenants under Section 6 8 have value that is equivalent in amount to some or all of the Severance Amount (and potentially other termination benefits) and that such value shall be recognized in the Code Section 280G calculations contemplated hereunder. The Independent Advisor shall make the determination of the actual fair market value of the restrictive covenants under Section 6 8 at the time of the Change of in Control.

Excise Tax Limitation. (a) It is Notwithstanding anything in this Agreement to the intention of the Parties that no contrary, if any portion of any payment payments to Executive by the Company under this Agreement, Agreement and any other present or payments to or for the benefit future plan of the Company or other present or future agreement between Executive under and the Company would not be deductible by the Company (collectively, "Payments") for federal income tax purposes by reason of application of Section 162(m) of the Internal Revenue Code (the "Code"), then payment of that portion to Executive shall be deferred until the earliest date upon which payment thereof can be made to Executive without being non-deductible pursuant to Section 162(m) of the Code. In the event of such deferral, the Company shall pay interest to Executive on the deferred amount at 120% of the applicable federal rate provided for in Section 1274(d)(1) of the Code. In addition, notwithstanding any other agreement or planprovision of this Agreement to the contrary, be deemed to be an Excess Parachute Payment. The the aggregate present value of the payments and benefits (excluding those payments and benefits not treated as parachute payments under Code Section 2BOG(b)) to be made or for the benefit of provided to the Executive in by the nature of compensation, receipt of which is contingent on a Change of Control, and Company (whether pursuant to which Code Section 280G applies (in the aggregate “Total Payments”this Agreement or otherwise) shall not exceed an amount equal to three times the Executive's annualized includible compensation for the base period, as defined in Code Section 28OG(d) of the Code, minus one dollar ($$ 1.00) less than (the maximum amount "Limited Payment Amount "), and any excess payments or benefits shall be forfeited; provided, however, that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes forfeiture provision of this Agreement sentence shall be calculated apply only if such forfeiture provision results in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company larger aggregate after-tax payments and benefits to the Executive than if the forfeiture provision did not apply. The intent of its belief that there this portion of this is a to prevent any payment or benefit due to the Executive that will from being subject to the excise tax imposed by Code Section 4999 and to prevent any item of expense or deduction of the Company from being disallowed as a result in an Excess Parachute Payment, of the Parties, at the Company’s expense, shall obtain the opinion application of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined under Code Section 280G), but only if the after-tax payments and benefits payable or provided to the Executive are greater after application of the forfeiture provision than if the forfeiture provision did not apply. The interpretation of this subsection 5 (Ba) its application to any occurrence or event, the determination of whether any payment or benefit would not be treated as a parachute payment, the determination of the aggregate present value of Total Payments all payments and (C) benefits to be made or provided to the amount and present Executive, the determination of the value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder payments and benefits payable or any other payment determined by such Independent Advisor to be includable in Total Payments provided to the Executive after reduction for all applicable taxes, and what specific payments or benefits otherwise available to the Executive shall be modified, reduced limited or eliminated, in accordance with Code Section 409A, as specified eliminated by operation of this shall be reasonably made by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 5, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for under this Agreement and (B) any other compensation earned by the Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change of Controlbinding on all persons. (b) The Parties hereby recognize that An initial determination as to whether the restrictive covenants under Section 6 have value Payments shall be reduced to the Limited Payment Amount and the amount of such Limited Payment Amount shall be made, at the Company's expense, by the accounting firm that is equivalent in amount to some or all the Company's independent accounting firm as of the Severance Amount (and potentially other termination benefits) and that such value shall be recognized in the Code Section 280G calculations contemplated hereunder. The Independent Advisor shall make the determination of the actual fair market value of the restrictive covenants under Section 6 at the time date of the Change of Control.in Control (the "Accounting Firm"

Excise Tax Limitation. In the event it should be determined (ain the manner set forth below) It is the intention of the Parties that no portion any payment or distribution of any payment under this Agreement, or payments type to or for the benefit of Executive made by the Executive under Employer, any other agreement person who acquires ownership or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit effective control of the Executive Company or ownership of a substantial portion of the Company’s assets in connection with a “change in control” (within the nature meaning of compensation, receipt of which is contingent on a Change of Control, and to which Code Section 280G applies and the regulations thereunder) or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (in the aggregate “Total Payments”) shall not ), would otherwise exceed an amount equal to one dollar ($1.00) less than the maximum amount that could be received by Executive without the Company may pay without loss imposition of deduction an excise tax under Code Section 280G(a4999 (the “Safe Harbor Amount”). Present value for purposes of this Agreement , then the Total Payments shall be calculated reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance with the applicable provisions of Code Section 280G(d)(4). Within one hundred twenty (120) days following 280G and the earlier regulations thereunder, does not exceed the greater of (i) the giving of the notice of termination Safe Harbor Amount, or (ii) the giving of notice by the Company greatest after-tax amount payable to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined after taking into account any excise tax imposed under Code Section 280G4999 on the Total Payments (such greater amount of (i) or (ii), the “Benefit Limit”). All determinations under this Section 6 shall be made by an independent registered public accounting firm selected by the Employer and Executive from among the largest four accounting firms in the United States and paid for by the Employer (B) the present value of “Accounting Firm”). If a reduction in payments or benefits is necessary so that the Total Payments and (C) do not exceed the amount and present value Benefit Limit, reduction shall occur in the following order: reduction of any Excess Parachute Paymentscash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor accelerated vesting of stock awards is to be includable in Total Payments reduced, such accelerated vesting shall be modified, reduced or eliminated, cancelled in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days reverse order of the grant date of Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Paymentstock awards. The provisions of this Section 5, including the calculations, notices notices, and opinion opinions provided for herein, herein shall be based upon the conclusive presumption that (A) the compensation and benefits provided for under in this Agreement and (B) any other compensation earned by the Executive pursuant to the CompanyEmployer’s compensation programs that would have been paid provided in any event, event are reasonable compensation for services rendered, even though the timing of such payment may be is triggered by the Change in Control; provided, however, that if such Accounting Firm so requests in connection with the opinion required by this Section 5, Executive and the Employer shall obtain, at the Employer’s expense, the advice of a Change firm of Control. (b) recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by Executive. The Parties hereby recognize that Executive shall receive a copy of all final written reports and/or opinions issued by the restrictive covenants under Section 6 have value that is equivalent in amount Accounting Firm or executive compensation consultants engaged hereunder. Any modification, reduction or elimination of payments necessary to some or all of accomplish the Severance Amount (and potentially other termination benefits) and that such value foregoing shall be recognized done in the accordance with applicable provisions of Code Section 280G calculations contemplated hereunder. The Independent Advisor shall make the determination of the actual fair market value of the restrictive covenants under Section 6 at the time of the Change of Control.409A.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change of in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 56, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for under this Agreement in Section 3 and (B) any other compensation earned by the Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change of in Control. (b) The Parties hereby recognize that the restrictive covenants under Section 6 7 have value that is equivalent in amount to some or all of the Severance Amount (and potentially other termination benefits) and that such value shall be recognized in the Code Section 280G calculations contemplated hereunder. The Independent Advisor shall make the determination of the actual fair market value of the restrictive covenants under Section 6 7 at the time of the Change of in Control. 7.

Excise Tax Limitation. In the event it should be determined (ain the manner set forth below) It is the intention of the Parties that no portion any payment or distribution of any payment under this Agreement, or payments type to or for the benefit of Executive made by the Executive under Bank (referred to in this paragraph (c) as the “Employer”), any other agreement person who acquires ownership or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit effective control of the Executive Company or ownership of a substantial portion of the Company’s assets in connection with a “change in control” (within the nature meaning of compensation, receipt of which is contingent on a Change of Control, and to which Code Section 280G applies and the regulations thereunder) or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (in the aggregate “Total Payments”) shall not ), would otherwise exceed an amount equal to one dollar ($1.00) less than the maximum amount that could be received by Executive without the Company may pay without loss imposition of deduction an excise tax under Code Section 280G(a4999 (the “Safe Harbor Amount”). Present value for purposes of this Agreement , then the Total Payments shall be calculated reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance with the applicable provisions of Code Section 280G(d)(4). Within one hundred twenty (120) days following 280G and the earlier regulations thereunder, does not exceed the greater of (i) the giving of the notice of termination Safe Harbor Amount, or (ii) the giving of notice by the Company greatest after-tax amount payable to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined after taking into account any excise tax imposed under Code Section 280G4999 on the Total Payments (such greater amount of (i) or (ii), the “Benefit Limit”). All determinations under this Section 6 shall be made by an independent compensation consultant, law firm or independent registered public accounting firm selected by the Employer and Executive (B) the present value of “Advisor”). If a reduction in payments or benefits is necessary so that the Total Payments and (C) do not exceed the amount and present value Benefit Limit, reduction shall occur in the following order: reduction of any Excess Parachute Paymentscash payments; cancellation of accelerated vesting of equity awards; reduction of employee benefits. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor accelerated vesting of equity awards is to be includable in Total Payments reduced, such accelerated vesting shall be modified, reduced or eliminated, cancelled in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days reverse order of the grant date of Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Paymentequity awards. The provisions of this Section 5, including the calculations, notices notices, and opinion opinions provided for herein, herein shall be based upon the conclusive presumption that (A) the compensation and benefits provided for under in this Agreement and (B) any other compensation earned by the Executive pursuant to the CompanyEmployer’s compensation programs that would have been paid provided in any event, event are reasonable compensation for services rendered, even though the timing of such payment may be is triggered by the Change in Control; provided, however, that if such Advisor so requests in connection with the opinion required by this Section 5, Executive and the Employer shall obtain, at the Employer’s expense, the advice of a Change firm of Control. (b) recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by Executive. The Parties hereby recognize that Executive shall receive a copy of all final written reports and/or opinions issued by the restrictive covenants under Section 6 have value that is equivalent in amount Advisor or executive compensation consultants engaged hereunder. Any modification, reduction or elimination of payments necessary to some or all of accomplish the Severance Amount (and potentially other termination benefits) and that such value foregoing shall be recognized done in the accordance with applicable provisions of Code Section 280G calculations contemplated hereunder. The Independent Advisor shall make the determination of the actual fair market value of the restrictive covenants under Section 6 at the time of the Change of Control.409A.

Excise Tax Limitation. In the event it should be determined (ain the manner set forth below) It is the intention of the Parties that no portion any payment or distribution of any payment under this Agreement, or payments type to or for the benefit of Executive made by the Executive under Employer, any other agreement person who acquires ownership or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit effective control of the Executive Company or ownership of a substantial portion of the Company’s assets in connection with a “change in control” (within the nature meaning of compensation, receipt of which is contingent on a Change of Control, and to which Code Section 280G applies and the regulations thereunder) or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (in the aggregate “Total Payments”) shall not ), would otherwise exceed an amount equal to one dollar ($1.00) less than the maximum amount that could be received by Executive without the Company may pay without loss imposition of deduction an excise tax under Code Section 280G(a4999 (the “Safe Harbor Amount”). Present value for purposes of this Agreement , then the Total Payments shall be calculated reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance with the applicable provisions of Code Section 280G(d)(4). Within one hundred twenty (120) days following 280G and the earlier regulations thereunder, does not exceed the greater of (i) the giving of the notice of termination Safe Harbor Amount, or (ii) the giving of notice by the Company greatest after-tax amount payable to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined after taking into account any excise tax imposed under Code Section 280G4999 on the Total Payments (such greater amount of (i) or (ii), the “Benefit Limit”). All determinations under this Section 5 shall be made by an independent compensation consultant, law firm or independent registered public accounting firm selected by the Employer and Executive (B) the present value of “Advisor”). If a reduction in payments or benefits is necessary so that the Total Payments and (C) do not exceed the amount and present value Benefit Limit, reduction shall occur in the following order: reduction of any Excess Parachute Paymentscash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor accelerated vesting of stock awards is to be includable in Total Payments reduced, such accelerated vesting shall be modified, reduced or eliminated, cancelled in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days reverse order of the grant date of Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Paymentstock awards. The provisions of this Section 5, including the calculations, notices notices, and opinion opinions provided for herein, herein shall be based upon the conclusive presumption that (A) the compensation and benefits provided for under in this Agreement and (B) any other compensation earned by the Executive pursuant to the CompanyEmployer’s compensation programs that would have been paid provided in any event, event are reasonable compensation for services rendered, even though the timing of such payment may be is triggered by the Change in Control; provided, however, that if such Advisor so requests in connection with the opinion required by this Section 5, Executive and the Employer shall obtain, at the Employer’s expense, the advice of a Change firm of Control. (b) recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by Executive. The Parties hereby recognize that Executive shall receive a copy of all final written reports and/or opinions issued by the restrictive covenants under Section 6 have value that is equivalent in amount Advisor engaged hereunder. Any modification, reduction or elimination of payments necessary to some or all of accomplish the Severance Amount (and potentially other termination benefits) and that such value foregoing shall be recognized done in the accordance with applicable provisions of Code Section 280G calculations contemplated hereunder. The Independent Advisor shall make the determination of the actual fair market value of the restrictive covenants under Section 6 at the time of the Change of Control.409A.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change of in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 56, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for under this Agreement in Section 4 and (B) any other compensation earned by the Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change of in Control. (b) The Parties hereby recognize that the restrictive covenants under Section 6 7 have value that is equivalent in amount to some or all of the Severance Amount (and potentially other termination benefits) and that such value shall be recognized in the Code Section 280G calculations contemplated hereunder. The Independent Advisor shall make the determination of the actual fair market value of the restrictive covenants under Section 6 7 at the time of the Change of in Control.