Common use of Golden Parachute Clause in Contracts

Golden Parachute. Your total payments and benefits under this Agreement may exceed the relevant limitations under the “golden parachute” provisions of Code Section 280G. However, nothing in this Agreement will cause the Company to be required to pay to you any amount in excess of the Severance Benefits provided for in this Agreement. Notwithstanding the foregoing, in the event any payment or benefit to you under this Agreement or otherwise would (a) constitute a “parachute payment” within the meaning of Code Section 280G and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (or any comparable successor or state law provision) and any related interest or penalties (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then you shall receive either (i) the largest portion of such payments and benefits that would result in no portion of such payments and benefits being subject to the Excise Tax or (ii) the full amount of such payments and benefits; whichever of the amounts under (i) and (ii), when taking into account all applicable federal, state, local and foreign income and employment taxes, the Excise Tax and any other applicable taxes (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion thereof may be subject to the Excise Tax. In the event of a reduction hereunder, you will be given the choice of which payments or benefits to reduce to the extent practicable for the Company. The foregoing calculations shall be made at the Company’s expense by an accounting firm selected by the Company. You shall remain solely liable for all income taxes, Excise Taxes, or other amounts assessed on any payments or benefits to which you are entitled and nothing in this Agreement or otherwise shall be interpreted as obligating the Company to pay (or reimburse you for) any income taxes, Excise Taxes, or other taxes or amounts assessed against or incurred by you in connection with your receipt of such payments and benefits.

Golden Parachute. Your total payments and benefits under this Agreement may exceed the relevant limitations under the “golden parachute” provisions of Code Section 280G. However, nothing Notwithstanding anything in this Agreement will cause to the Company to be required to pay to you any amount contrary, if Executive is a “disqualified individual” (as defined in excess section 280G(c) of the Severance Benefits Code) and the benefits and payments provided for in this Agreement. Notwithstanding , together with any other payments or vesting of equity awards which Executive has the foregoing, right to receive on account of a “change in control” (defined for this purpose in section 280G of the Code) would in the event any payment or benefit to you under this Agreement or otherwise would (a) constitute aggregate result in a “parachute payment” within (as defined in section 280G(b)(2) of the meaning Code) to Executive, the amount of Code such change in control payments shall be reduced by the Company so that the aggregate of payments to Executive is the maximum change in control payment that does not constitute a parachute payment (such amount referred to herein as the “Safe Harbor Payment”); provided, however, such reduction shall not be applied if the net payment to Executive (after considering the effect of applicable excise taxes under section 4999 of the Code) is greater than the Safe Harbor Payment. If, as a result of the above calculations, payments or benefits are to be reduced to the Safe Harbor Payment, the reduction shall be applied in the following order: (i) cash severance pay that is exempt from section 409A; (ii) any other cash severance pay; (iii) continued health care benefits; (iv) any restricted stock; (v) any equity awards other than restricted stock and stock options; and (vi) stock options. Unless the Company and Executive otherwise agree in writing, any determination required under this Section shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive (the “Independent Advisor”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of sections 280G and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (or any comparable successor or state law provision) and any related interest or penalties (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as Code; provided that the “Excise Tax”), then you Independent Advisor shall receive either (i) the largest portion of such payments and benefits assume that would result in no portion of such payments and benefits being subject to the Excise Tax or (ii) the full amount of such payments and benefits; whichever of the amounts under (i) and (ii), when taking into account Executive pays all applicable federal, state, local and foreign income and employment taxes, the Excise Tax and any other applicable taxes (all computed at the highest applicable marginal rate), results rate in your receipt, on an after-tax basis, the absence of the greatest amount of payments and benefits, notwithstanding that all or some portion thereof may be subject clear evidence to the Excise Taxcontrary. In the event of a reduction hereunder, you will be given the choice of which payments or benefits to reduce The Company and Executive shall furnish to the extent practicable for Independent Advisor such information and documents as the CompanyIndependent Advisor may reasonably request in order to make a determination under this Section. The foregoing calculations Company shall be made at bear all costs that the Company’s expense by an accounting firm selected by the Company. You shall remain solely liable for all income taxes, Excise Taxes, or other amounts assessed on any payments or benefits to which you are entitled and nothing in this Agreement or otherwise shall be interpreted as obligating the Company to pay (or reimburse you for) any income taxes, Excise Taxes, or other taxes or amounts assessed against or incurred by you Independent Advisor may incur in connection with your receipt of such payments and benefitsany calculations contemplated by this Section.

Golden Parachute. Your total payments and benefits under this Agreement may exceed the relevant limitations under the “golden parachute” provisions of Code Section 280G. However, nothing Notwithstanding anything in this Agreement will cause to the Company to be required to pay to you any amount contrary, if Executive is a “disqualified individual” (as defined in excess section 280G(c) of the Severance Benefits Code) and the benefits and payments provided for in this Agreement. Notwithstanding , together with any other payments or vesting of equity awards which Executive has the foregoing, right to receive on account of a “change in control” (defined for this purpose in section 280G of the Code) would in the event any payment or benefit to you under this Agreement or otherwise would (a) constitute aggregate result in a “parachute payment” within (as defined in section 280G(b)(2) of the meaning Code) to Executive, the total amount of Code Section 280G and (b) but for this sentenceall such change in control payments shall be reduced by BancorpSouth so that the aggregate payments to Executive do not constitute such a parachute payment; provided, be subject however, that such reduction shall not occur if such the net payment to Employee after considering the effect of any applicable excise tax imposed by Section under section 4999 of the Code is greater than the amount that Executive would receive after application of the reduction described in this Section. If Executive’s payments or benefits are delivered to a lesser extent in accordance with this Section, then Executive’s aggregate benefits shall be reduced in the following order (or i) cash severance pay that is exempt from section 409A, (ii) any comparable successor or state law provisionother cash severance pay, (iv) continued health care benefits, (iii) any restricted stock, (iv) any equity awards other than restricted stock and stock options, and (v) stock options. Unless BancorpSouth and Executive otherwise agree in writing, any related interest or penalties determination required under this Section shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise TaxIndependent Advisor”), then you whose determination shall receive either (i) be conclusive and binding upon Executive and the largest portion Company for all purposes. For purposes of such payments making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and benefits that would result in no portion approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of such payments sections 280G and benefits being subject to the Excise Tax or (ii) the full amount of such payments and benefits; whichever 4999 of the amounts under (i) and (ii), when taking into account Code; provided that Independent Advisor shall assume that Executive pays all applicable federal, state, local and foreign income and employment taxes, the Excise Tax and any other applicable taxes (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion thereof may be subject to the Excise Tax. In the event of a reduction hereunder, you will be given the choice of which payments or benefits to reduce to the extent practicable for the Company. The foregoing calculations Company and Executive shall be made at furnish to Independent Advisor such information and documents as Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that the Company’s expense by an accounting firm selected by the Company. You shall remain solely liable for all income taxes, Excise Taxes, or other amounts assessed on any payments or benefits to which you are entitled and nothing in this Agreement or otherwise shall be interpreted as obligating the Company to pay (or reimburse you for) any income taxes, Excise Taxes, or other taxes or amounts assessed against or incurred by you Independent Advisor may incur in connection with your receipt of such payments and benefitsany calculations contemplated by this Section.

Golden Parachute. Your total payments and benefits under this Agreement may exceed the relevant limitations under the “golden parachute” provisions of Code Section 280G. However, nothing in this Agreement will cause the Company to be required to pay to you any amount in excess of the Severance Benefits provided for in this Agreement. Notwithstanding the foregoing, in the event any payment or benefit to you under this Agreement or otherwise would (a) constitute a)constitute a “parachute payment” within the meaning of Code Section 280G and (b) but b)but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (or any comparable successor or state law provision) and any related interest or penalties (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then you shall receive either (i) the largest portion of such payments and benefits that would result in no portion of such payments and benefits being subject to the Excise Tax or (ii) the full amount of such payments and benefits; whichever of the amounts under (i) and (ii), when taking into account all applicable federal, state, local and foreign income and employment taxes, the Excise Tax and any other applicable taxes (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion thereof may be subject to the Excise Tax. In the event of a reduction hereunder, you will be given the choice of which payments or benefits to reduce to the extent practicable for the Company. The foregoing calculations shall be made at the Company’s expense by an accounting firm selected by the Company. You shall remain solely liable for all income taxes, Excise Taxes, or other amounts assessed on any payments or benefits to which you are entitled and nothing in this Agreement or otherwise shall be interpreted as obligating the Company to pay (or reimburse you for) any income taxes, Excise Taxes, or other taxes or amounts assessed against or incurred by you in connection with your receipt of such payments and benefits.

Golden Parachute. Your total payments and benefits under this Agreement may exceed the relevant limitations under the “golden parachute” provisions of Code Section 280G. However, nothing in this Agreement will cause the Company to be required to pay to you any amount in excess of the Severance Benefits provided for in this Agreement. Notwithstanding the foregoing, in In the event it shall be determined that any payment or benefit to you under Executive, by the Company, any affiliate of the Company, any person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company assets (within the meaning of Section 280G of the Code, 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 would (a) constitute a the “parachute payment” within the meaning of Code Section 280G and (b) but for this sentenceChange in Control Payments”), is or will be subject to the excise tax imposed by Section 4999 of the Code (or any comparable successor or state law provision) and any related interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then you Executive shall be entitled to receive either an additional payment (ia “280G Reimbursement Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax, imposed upon the largest portion 280G Reimbursement Payment, Executive retains an amount of the 280G Reimbursement Payment equal to the Excise Tax imposed upon the Change in Control Payments. The 280G Reimbursement Payment shall be paid on the thirtieth (30th) day from the date that Executive is deemed to have “excess parachute payments” as defined in Section 280G of the Code. All mathematical determinations, and all determinations as to whether any of the Change in Control Payments are “parachute payments” (within the meaning of Section 280G of the Code), that are required to be made hereunder, including determinations as to whether a 280G Reimbursement Payment is required and the amount of such payments 280G Reimbursement Payment shall be made by an independent accounting firm mutually selected by the Company and benefits Executive from among the four (4) largest accounting firms in the United States (the “Accounting Firm”), which shall provide its determination (the “Determination”), together with detailed supporting calculations regarding the amount of any 280G Reimbursement Payment and any other relevant matter, both to the Company and Executive by no later than ten (10) days following the date of employment termination or, if applicable, such earlier time as is requested by the Company or Executive (if Executive reasonably believes that would result any of the Change in no portion of such payments and benefits being Control Payments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive and the Company with an opinion reasonably acceptable to Executive and the Company that no Excise Tax is payable (including the reasons therefor) and that Executive has substantial authority not to report any Excise Tax on his federal income tax return. Any determination by the Accounting Firm shall be binding upon the Company and Executive, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that 280G Reimbursement Payments not made by the Company should have been made (“Underpayment”), or that 280G Reimbursement Payments will have been made by the Company which should not have been made (“Overpayments”). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment (together with any interest and penalties payable by Executive as a result of such Underpayment) shall be promptly paid by the Company to or for the benefit of Executive. In the case of an Overpayment, Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, provided, however, that (i) Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) the full amount of such payments and benefits; whichever of the amounts under (i) and (ii)if a 280G Reimbursement Payment is determined to be payable, when taking into account all applicable federal, state, local and foreign income and employment taxes, the Excise Tax and any other applicable taxes (all computed at the highest applicable marginal rate), results this provision shall be interpreted in your receipta manner consistent with an intent to make Executive whole, on an after-tax basis, from the application of the greatest amount of payments and benefits, notwithstanding that all or some portion thereof may be subject to the Excise Tax. In , it being understood that the event correction of a reduction hereunder, you will be given the choice of which payments or benefits to reduce an Overpayment may result in Executive repaying to the extent practicable for Company an amount which is less than the CompanyOverpayment. The foregoing calculations cost of the Accounting Firm in connection with any such Determination shall be made at the Company’s expense by an accounting firm selected paid by the Company. You shall remain solely liable for all income taxes, Excise Taxes, or other amounts assessed on any payments or benefits to which you are entitled and nothing in this Agreement or otherwise shall be interpreted as obligating the Company to pay (or reimburse you for) any income taxes, Excise Taxes, or other taxes or amounts assessed against or incurred by you in connection with your receipt of such payments and benefits.

Golden Parachute. Your The Executive’s total payments and benefits under this Agreement may exceed the relevant limitations under the “golden parachute” provisions of Code Section 280G. 280G of the Internal Revenue Code. However, nothing in this Agreement will cause the Company to be required to pay to you the Executive any amount in excess of the Severance Benefits provided for in this Agreement. Notwithstanding the foregoing, in the event any payment or benefit to you the Executive under this Agreement or otherwise would (a) constitute a “parachute payment” within the meaning of Internal Revenue Code Section 280G and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (or any comparable successor or state law provision) and any related interest or penalties (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then you the Executive shall receive either (i) the largest portion of such payments and benefits that would result in no portion of such payments and benefits being subject to the Excise Tax or (ii) the full amount of such payments and benefits; whichever of the amounts under (i) and (ii), when taking into account all applicable federal, state, local and foreign income and employment taxes, the Excise Tax and any other applicable taxes (all computed at the highest applicable marginal rate), results in your the Executive’s receipt, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion thereof may be subject to the Excise Tax. In the event of a reduction hereunder, you the Executive will be given the choice of which payments or benefits to reduce to the extent practicable for the Company. The foregoing calculations shall be made at the Company’s expense by an accounting firm selected by the Company. You The Executive shall remain solely liable for all income taxes, the Excise TaxesTax, or other amounts assessed on any payments or benefits to which you are the Executive is entitled and nothing in this Agreement or otherwise shall be interpreted as obligating the Company to pay (or reimburse you the Executive for) any income taxes, Excise Taxes, or other taxes or amounts assessed against or incurred by you the Executive in connection with your the Executive’s receipt of such payments and benefits.

Golden Parachute. Your total Excise Tax. If the payments and benefits under this Agreement may exceed the relevant limitations under the “golden parachute” provisions of Code Section 280G. However, nothing in this Agreement will cause the Company to be required to pay to you any amount in excess of the Severance Benefits provided for in this Agreement. Notwithstanding the foregoing, in the event any payment or benefit to you under this Agreement or otherwise would (a) payable to Executive constitute a “parachute paymentpayments” within the meaning of Code Section 280G of the Code and (b) but for this sentence, will be subject to the excise tax imposed by Section 4999 of the Code (or any comparable successor or state law provision) and any related interest or penalties (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)Code, then you those payments and benefits shall receive either be subject to reduction to the extent necessary to assure that the payments and benefits provided Executive under this Agreement will be limited to the greater of (i) the largest portion amount of payments and benefits which can be provided without triggering a parachute payment under Code Section 280G or (ii) the maximum dollar amount of payments and benefits which can be provided under this Agreement so as to provide Executive with the greatest after-tax amount of such payments and benefits that would result in no portion of such after taking into account any excise tax the Executive may incur under Code Section 4999 with respect to those payments and benefits being subject to the Excise Tax or (ii) the full amount of such payments and benefits; whichever of the amounts under (i) and (ii), when taking into account all applicable federal, state, local and foreign income and employment taxes, the Excise Tax and any other applicable taxes (all computed at benefits or payments to which the highest applicable marginal rate), results Executive may be entitled in your receipt, on an after-tax basis, connection with any change in control or ownership of the greatest amount Company or the subsequent termination of payments his employment. Unless the Company and benefitsExecutive otherwise agree in writing, notwithstanding that all or some portion thereof may be subject to the Excise Tax. In the event of a reduction hereunder, you will be given the choice of which payments or benefits to reduce to the extent practicable for the Company. The foregoing calculations any determination required under this Section 11 shall be made at the Company’s expense in writing in good faith by an independent registered public accounting firm selected by the CompanyCompany from among the largest four accounting firms in the United States (the “Accountants”). You For purposes of making the calculations required by this Section 10, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive shall remain solely liable for all income taxesfurnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. If the Accountants determine that reduction of Executive’s severance benefits is required by this Section 10 such that no portion of Executive’s severance benefits will be subject to the excise tax imposed by Code Section 4999, Excise Taxes, or other amounts assessed on any payments or the severance benefits to which you are entitled and nothing in this Agreement or otherwise shall be interpreted as obligating reduced in the Company to following order: (i) cash severance pay that is exempt from Code Section 409A, (or reimburse you forii) any income taxesother cash severance pay, Excise Taxes(iii) any other cash payable that is a severance benefit other than stock appreciation rights, or other taxes or amounts assessed against or incurred by you (iv) any stock appreciation rights, (v) any restricted stock units, and (vi) stock options. The Company shall bear all costs the Accountants may reasonably incur in connection with your receipt of such payments and benefitsany calculations contemplated by this Section 10.

Golden Parachute. Your total payments and benefits under this Agreement may exceed the relevant limitations under the “golden parachute” provisions of Code Section 280G. However, nothing in this Agreement will cause the Company to be required to pay to you any amount in excess of the Severance Benefits provided for in this Agreement. Notwithstanding the foregoing, in In the event it shall be determined that any payment or benefit to you under Executive, by the Company, any affiliate of the Company, any person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), 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 would (a) constitute a the “parachute payment” within the meaning of Code Section 280G and (b) but for this sentenceChange in Control Payments”), is or will be subject to the excise tax imposed by Section 4999 of the Code (or any comparable successor or state law provision) and any related interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then you Executive shall be entitled to receive either an additional payment (ia “280G Reimbursement Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax, imposed upon the largest portion 280G Reimbursement Payment, Executive retains an amount of the 280G Reimbursement Payment equal to the Excise Tax imposed upon the Change in Control Payments. The 280G Reimbursement Payment shall be paid on the thirtieth (30th) day from the date that Executive is deemed to have “excess parachute payments” as defined in Section 280G of the Code. All mathematical determinations, and all determinations as to whether any of the Change in Control Payments are “parachute payments” (within the meaning of Section 280G of the Code), that are required to be made hereunder, including determinations as to whether a 280G Reimbursement Payment is required and the amount of such payments 280G Reimbursement Payment shall be made by the Company’s accounting firm (the “Accounting Firm”), which shall provide its determination (the “Determination”), together with detailed supporting calculations regarding the amount of any 280G Reimbursement Payment and benefits any other relevant matter, both to the Company and Executive by no later than ten (10) days following the date of employment termination or, if applicable, such earlier time as is requested by the Company or Executive (if Executive reasonably believes that would result any of the Change in no portion of such payments and benefits being Control Payments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive and the Company with an opinion reasonably acceptable to Executive and the Company that no Excise Tax is payable (including the reasons therefor) and that Executive has substantial authority not to report any Excise Tax on his federal income tax return. Any determination by the Accounting Firm shall be binding upon the Company and Executive, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that 280G Reimbursement Payments not made by the Company should have been made (“Underpayment”), or that 280G Reimbursement Payments will have been made by the Company which should not have been made (“Overpayments”). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment (together with any interest and penalties payable by Executive as a result of such Underpayment) shall be promptly paid by the Company to or for the benefit of Executive. In the case of an Overpayment, Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, provided, however, that (i) Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) the full amount of such payments and benefits; whichever of the amounts under (i) and (ii)if a 280G Reimbursement Payment is determined to be payable, when taking into account all applicable federal, state, local and foreign income and employment taxes, the Excise Tax and any other applicable taxes (all computed at the highest applicable marginal rate), results this provision shall be interpreted in your receipta manner consistent with an intent to make Executive whole, on an after-tax basis, from the application of the greatest amount of payments and benefits, notwithstanding that all or some portion thereof may be subject to the Excise Tax. In , it being understood that the event correction of a reduction hereunder, you will be given the choice of which payments or benefits to reduce an Overpayment may result in Executive repaying to the extent practicable for Company an amount which is less than the CompanyOverpayment. The foregoing calculations cost of the Accounting Firm in connection with any such Determination shall be made at the Company’s expense by an accounting firm selected paid by the Company. You shall remain solely liable for all income taxes, Excise Taxes, or other amounts assessed on any payments or benefits to which you are entitled and nothing in this Agreement or otherwise shall be interpreted as obligating the Company to pay (or reimburse you for) any income taxes, Excise Taxes, or other taxes or amounts assessed against or incurred by you in connection with your receipt of such payments and benefits.

Golden Parachute. Your total payments and benefits under this Agreement may exceed the relevant limitations under the “golden parachute” provisions of Code Section 280G. However, nothing Notwithstanding anything in this Agreement will cause to the Company to be required to pay to you any amount contrary, if Executive is a “disqualified individual” (as defined in excess section 280G(c) of the Severance Benefits Code) and the benefits and payments provided for in this Agreement. Notwithstanding , together with any other payments or vesting of equity awards which Executive has the foregoing, right to receive on account of a “change in control” (defined for this purpose in section 280G of the Code) would in the event any payment or benefit to you under this Agreement or otherwise would (a) constitute aggregate result in a “parachute payment” within (as defined in section 280G(b)(2) of the meaning Code) to Executive, the amount of Code such change in control payments shall be reduced by the Company so that the aggregate of payments to Executive is the maximum change in control payment that does not constitute a parachute payment (such amount referred to herein as the “Safe Harbor Payment”); provided, however, such reduction shall not be applied if the net payment to Executive (after considering the effect of applicable excise taxes under section 4999 of the Code) is greater than the Safe Harbor Payment. If, as a result of the above calculations, payments or benefits are to be reduced to the Safe Harbor Payment, the reduction shall be applied in the following order: (i) cash severance pay that is exempt from section 409A; (ii) any other cash severance pay; (iii) continued health care benefits; (iv) any restricted stock; (v) any equity awards other than restricted stock and stock options; and (vi) stock options. Unless the Company and Executive otherwise agree in writing, any determination required under this Section shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of sections 280G and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (or any comparable successor or state law provision) and any related interest or penalties (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as Code; provided that the “Excise Tax”), then you Independent Advisor shall receive either (i) the largest portion of such payments and benefits assume that would result in no portion of such payments and benefits being subject to the Excise Tax or (ii) the full amount of such payments and benefits; whichever of the amounts under (i) and (ii), when taking into account Executive pays all applicable federal, state, local and foreign income and employment taxes, the Excise Tax and any other applicable taxes (all computed at the highest applicable marginal rate), results rate in your receipt, on an after-tax basis, the absence of the greatest amount of payments and benefits, notwithstanding that all or some portion thereof may be subject clear evidence to the Excise Taxcontrary. In the event of a reduction hereunder, you will be given the choice of which payments or benefits to reduce The Company and Executive shall furnish to the extent practicable for Independent Advisor such information and documents as the CompanyIndependent Advisor may reasonably request in order to make a determination under this Section. The foregoing calculations Company shall be made at bear all costs that the Company’s expense by an accounting firm selected by the Company. You shall remain solely liable for all income taxes, Excise Taxes, or other amounts assessed on any payments or benefits to which you are entitled and nothing in this Agreement or otherwise shall be interpreted as obligating the Company to pay (or reimburse you for) any income taxes, Excise Taxes, or other taxes or amounts assessed against or incurred by you Independent Advisor may incur in connection with your receipt of such payments and benefitsany calculations contemplated by this Section.