Common use of Golden Parachute Limitation Clause in Contracts

Golden Parachute Limitation. Notwithstanding anything herein to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to this Agreement or otherwise (collectively, the “Payments”) would be treated as an “excess parachute payment,” as that phrase is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Payments shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after tax basis of the greater amount of Payments. For purposes of this section, the “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the Payments shall be eliminated or reduced and shall notify the Executive promptly of such election. Any determination required under this Section 3 will be made in writing by the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity which the Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3.

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments” (as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the Payments shall be either: either (a) paid or allowed delivered in full; , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after after-tax basis basis, of the greater greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G of the Code or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 6, such Payments shall be eliminated or reduced and shall notify such that the reduction of compensation to be provided to Executive promptly as a result of such election. Any determination required under this Section 3 will 13 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 13 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity which the Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3.

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments” (as that phrase such term is defined in under Section 280G of the Internal Revenue Code or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of 1986the Code or any successor provision (collectively, as amended “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “CodeExcise Tax”), then the Payments shall be either: either (a) paid or allowed delivered in full; , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt by Employee, on an after after-tax basis basis, of the greater greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G of the Code or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 29, such Payments shall be eliminated or reduced and shall notify such that the Executive promptly reduction of such election. Any determination required under compensation to be provided to Employee as a result of this Section 3 will 29 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 29 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity which the Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3.

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments” (as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Payments shall be either: either (a) paid or allowed delivered in full; , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after after-tax basis basis, of the greater greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G of the Code or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 11, such Payments shall be eliminated or reduced and shall notify such that the reduction of compensation to be provided to Executive promptly as a result of such election. Any determination required under this Section 3 will 11 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 11 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity which the Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3.

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments” (as that phrase such term is defined in under Section 280G of the Internal Revenue Code) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”) that would be subject to the excise tax imposed by Section 4999 of the Code of 1986or any successor provision (collectively, as amended “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “CodeExcise Tax”), then the Payments shall be either: either (a) paid or allowed delivered in full; , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after after-tax basis basis, of the greater greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G of the Code or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 15, such Payments shall be eliminated or reduced and shall notify such that the reduction of compensation to be provided to Executive promptly as a result of such election. Any determination required under this Section 3 will 15 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 15 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity which the Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3.

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments” (as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the Payments shall be either: either (a) paid or allowed delivered in full; , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after after-tax basis basis, of the greater greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G of the Code or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 6, such Payments shall be eliminated or reduced and shall notify such that the reduction of compensation to be provided to Executive promptly as a result of such election. Any determination required under this Section 3 will 6 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 6 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity which the Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3.

Golden Parachute Limitation. Notwithstanding anything herein to the contrary, to the extent If any amount to be paid payment or benefit to be provided to the Executive would receive pursuant to this Agreement a termination from the Company or otherwise (collectively, the “PaymentsPayment”) would be treated as an (i) constitute a “excess parachute payment,” as that phrase is defined in within the meaning of Code Section 280G of G, and (ii) but for this sentence, be subject to the Internal Revenue excise tax imposed by Code of 1986, as amended Section 4999 (the “CodeExcise Tax”), then the Payments Company shall cause to be eitherdetermined, before any amounts of the Payment are paid to Executive, which of the following two amounts would maximize Executive's after-tax proceeds: (ai) paid or allowed payment in full; full of the entire amount of the Payment (a “Full Payment”), or (bii) reduced payment of only a part of the Payment so that Executive receives the largest payment possible without the imposition of the Excise Tax (but not below zero) a “Reduced Payment”), whichever amount results in Executive's receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. For purposes of determining whether to make a Full Payment or a Reduced AmountPayment, whichever of the foregoing amounts, taking Company shall cause to be taken into account the all applicable federal, state and local incomeincome and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 net of the Codemaximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made (i) results the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in payments and/or benefits shall occur in the following order: reduction of cash payments, cancellation of accelerated vesting of stock awards, and reduction of other benefits. In the event that acceleration of compensation from Executive’s receipt on an after tax basis 's equity awards is to be reduced, such acceleration of vesting shall be canceled in the reverse order of the greater amount date of Paymentsgrant unless Executive elects in writing a different order for cancellation. For purposes of this section, the “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be nondeductible The independent registered public accounting firm engaged by the Company because of Section 280G for general audit purposes as of the Code or subjecting day prior to the Executive to an excise tax under Section 4999 effective date of the Codetermination shall make all determinations required to be made under this Section 14. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the termination, the Company shall appoint a different nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company may elect which and how much of shall bear all expenses with respect to the Payments shall be eliminated or reduced and shall notify the Executive promptly of determinations by such election. Any determination independent registered public accounting firm required under this Section 3 will to be made in writing hereunder. The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which Executive's right to a Payment is triggered (if requested at that time by the Company or Executive) or at such other time as requested by the Company’s legal counsel or . If the independent registered public accountants immediately prior accounting firm determines that no Excise Tax is payable with respect to a Change of Control Payment, either before or such other person or entity which the Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning after the application of Sections 280G the Reduced Amount, it shall furnish the Company and 4999 Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the Code. The accounting firm made hereunder shall be final, binding and conclusive upon the Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3Executive.

Golden Parachute Limitation. Notwithstanding anything herein to the contrarycontrary in this Agreement, to if the extent any amount to be paid or benefit to be provided aggregate of all termination payments described in Section 7 of this Agreement and the vesting acceleration of options granted to the Executive pursuant to this Agreement by the Company, whether under the terms of the Amended and Restated 1994 Stock Option Plan or otherwise (collectively, the “Parachute Payments”) would be treated as an “excess parachute payment,” as that phrase is defined in ), valued according to Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Payments shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after tax basis of the greater amount of Payments. For purposes of this section, the “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code or subjecting would subject the Executive to an excise tax under Section 4999 of the Code. The Company , the Executive, in his sole discretion, may elect which and how much reduce or reject any portion of the Parachute Payments shall be eliminated or reduced and shall notify so that the Executive promptly present value of such election. Any determination required reduced Parachute Payments (as determined in accordance with Sections 280G of the Code) has the greatest aggregate present value without being subject to tax under this Section 3 will be made in writing by 4999 of the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity which the Company may select in its sole discretion Code (the “FirmReduced Amount”). In the application of the preceding paragraph of this Section 7.4, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement which should not have been so paid or distributed (“Overpayment”) or that additional amounts which will not have been paid or distributed by the Company to or for the benefit of the Executive pursuant to the preceding paragraph of this Section 7.4 could have been so paid or distributed (“Underpayment”), whose determination in each case, consistent with the calculation of the Reduced Amount. In the event it is determined that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of the Executive will be conclusive and binding upon treated for all purposes as a loan by the Company to the Executive, which loan shall be repaid by the Executive and upon demand together with interest calculated at the Companylowest interest rate authorized for such loans under the Code without a requirement that further interest be imputed. For purposes In the event it is determined that an Underpayment has occurred, any such Underpayment will be promptly paid by the Company to or for the benefit of making the calculations required by this Executive together with interest at the applicable federal rate provided for in Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 7872(f)(2) of the Code. The Company and determination of Overpayment or Underpayment, as the Executive will furnish case may be, for purposes of this Section 7.4 shall be subject to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged reasonable confirmation by the Firm Company’s independent tax counsel or certified public accounting firm, which shall be consistent with controlling precedent, substantial authority or assertions of any deficiency by the Internal Revenue Service in connection with any calculations contemplated by this Section 3matter for which such counsel or firm believes there is a high probability of success.

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments” (as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Payments shall be either: either (a) paid or allowed delivered in full; , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax (the “Capped Payment”), whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by the Executive’s receipt , on an after after-tax basis basis, of the greater greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, If a reduction in the “Reduced Amount” shall be an Payments is required so that the amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code or subjecting Payments equals the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of Capped Payment, the Payments shall be eliminated reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Code Section 409A; (2) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Code Section 409A; (3) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Code Section 409A; (4) cancellation of accelerated vesting of stock options that are exempt from Code Section 409A; and (5) reduction of any other payments and benefits otherwise payable to Executive on a pro-rata basis or reduced and shall notify the Executive promptly of such election. Any determination required under this other manner that complies with Code Section 3 will be made in writing 409A, as determined by the Company’s legal counsel . If acceleration of vesting of Executives stock options or other equity awards is to be cancelled pursuant to clauses (3) or (4) of the immediately preceding sentence, such cancellation of the acceleration of vesting shall be accomplished by first canceling such acceleration for the vesting installment that will vest last and continuing to the extent necessary by canceling such acceleration for the next vesting installment with the latest vesting. All computations and determinations called for by this Section 1.8 shall be made and reported in writing to the Company and Executive by an independent accounting firm or independent public accountants immediately prior tax counsel selected by the Executive subject to a Change of Control or such other person or entity approval by the Company, which the Company may select in its sole discretion approval shall not be unreasonably withheld (the “FirmTax Advisor”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company shall pay all fees and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs expenses charged by the Firm Tax Advisor in connection with its services. In no event shall any calculations contemplated by reduction or cancellation of Payments pursuant to this Section 3.1.8 result in an impermissible change in the form or timing of payments, or an impermissible acceleration of payments, in violation of Code Section 409A.”

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments” (as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the Payments shall be either: either (a) paid or allowed delivered in full; , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt by s, on an after after-tax basis basis, of the greater greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G of the Code or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 26, such Payments shall be eliminated or reduced and shall notify such that the Executive promptly reduction of such election. Any determination required under compensation to be provided to Employee as a result of this Section 3 will 26 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 26 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity which the Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3.

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments” (as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the Payments shall be either: either (a) paid or allowed delivered in full; , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after after-tax basis basis, of the greater greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G of the Code or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 6, such Payments shall be eliminated or reduced and shall notify such that the reduction of compensation to be provided to Executive promptly as a result of such election. Any determination required under this Section 3 will 13 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 10 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity which the Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3.

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments” (as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the Payments shall be either: either (a) paid or allowed delivered in full; , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after after-tax basis basis, of the greater greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes Any reduction or elimination of the Payments pursuant to this section, the “Reduced Amount” Section 6 shall be an amount expressed by first reducing or eliminating those Payments which are payable in present value cash and then by reducing or eliminating those Payments which maximizes the aggregate present value of all are not payable in cash, in each case in reverse order beginning with Payments without causing any Payment which are to be nondeductible by paid the Company because of Section 280G of farthest in time from the Code or subjecting the Executive to an excise tax under Section 4999 of the CodeDetermination. The Company may elect which and how much of determination as to whether the Payments shall be reduced, and, if so, the order in which payments will be reduced or eliminated or reduced and shall notify (unless the Executive promptly shall have given prior written notice specifying a different order to the Company to effectuate such reduction, which notice and order shall comply with the requirements of such election. Any determination required under Section 409A of the Code so as to avoid the imposition of any tax, penalty or interest thereunder), pursuant to this Section 3 will 6 shall be made in writing good faith by nationally recognized registered public accountants or tax counsel experienced in making Section 280G calculations selected by the Company at the Company’s legal counsel or independent public accountants immediately prior expense (the “Determination”), which shall provide such Determination with detailed supporting calculations and documentation to a Change the Company and Executive within ten (10) business days of Control the date of termination of the Executive’s employment, if applicable, or such other person or entity which time as reasonably requested by the Company may select in its sole discretion or Executive. Unless Executive provides written notice to the Company within ten (10) business days of the “Firm”)delivery of the Determination to Executive that he disputes such Determination, whose determination will the Determination shall be binding, final and conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3Executive.

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments” (as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the Payments shall be either: either (a) paid or allowed delivered in full; , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt by Employee, on an after after-tax basis basis, of the greater greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G of the Code or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 26, such Payments shall be eliminated or reduced and shall notify such that the Executive promptly reduction of such election. Any determination required under compensation to be provided to Employee as a result of this Section 3 will 26 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 26 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity which the Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3.

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments” (as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the Payments shall be either: either (a) paid or allowed delivered in full; , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt by Employee, on an after after-tax basis basis, of the greater greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G of the Code or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 6, such Payments shall be eliminated or reduced and shall notify such that the Executive promptly reduction of such election. Any determination required under compensation to be provided to Employee as a result of this Section 3 will 6 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 6 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity which the Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm in connection with any calculations contemplated by this Section 3.