Common use of Limitation of Benefits under Certain Circumstances Clause in Contracts

Limitation of Benefits under Certain Circumstances. If the severance benefits payable to Executive under this Section 6 ("Severance Benefits"), or any other payments or benefits received or to be received by Executive from Employers (whether payable pursuant to the terms of this Agreement, any other plan, agreement or arrangement with the Employers or any corporation affiliated with the Employers ("Affiliate") within the meaning of Section 1504 of the Internal Revenue Code of 1954, as amended (the "Code")), in the opinion of tax counsel selected by the Employers' independent auditors and acceptable to Executive, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Executive by the Employers (or an Affiliate) and includible in Executive's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control of the Employers occurred ("Base Amount"), such Severance Benefits shall be reduced, in a manner determined by Executive, to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Executive from the Employers (or an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (A) Executive shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 6(iv), or (B) in the opinion of such tax counsel, the Severance Benefits (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for services actually rendered, within the meaning of Section 280G (b)(4) of the code, and such payments are deductible by the Employers. The Base Amount shall include every type and form of compensation includible in Executive's gross income in respect of his employment by the Employers (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G (b) of the Code. For purposes of this Section 6(iv), a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Employers' independent auditors in accordance with the principles of Sections 280G (b)(3) and (4) of the Code. In the event that Employers and/or the Executive do not agree with the opinion of such counsel, (A) Employers shall pay to the Executive the maximum amount of payments and benefits pursuant to Section 6, as selected by the Executive, which in the opinion of counsel may be made without a substantial risk that such payments and benefits will be treated as non-deductible to the Employers and subject to the excise tax imposed under Section 4999 of the Code and (B) Employers may request, and Executive shall have the right to demand the Employers request, a ruling from the IRS as to whether the disputed payments and benefits pursuant to Section 6 hereof have such consequences. Any such request for a ruling from the IRS shall be promptly prepared and filed by the Employers, but in no event later than thirty (30) days from the date of the opinion of counsel referred to above, and shall be subject to Executive's approval prior to filing, which shall not be unreasonably withheld. Employers and Executive agree to be bound by any ruling received from the IRS and to make appropriate payments to each other to reflect any such rulings, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained herein shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified herein or a reduction in payments and benefits other than those provided in this Section 6. In the event that Section 280G, or any successor statute, is repealed, this Section 6 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agreed that, upon issuance of such final regulations this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modifications shall not be unreasonably withheld.

Limitation of Benefits under Certain Circumstances. If the severance benefits payable to Executive under this Section 6 ("Severance Benefits"), or any other payments or benefits received or to be received by Executive from Employers (whether payable pursuant to the terms of this Agreement, any other plan, agreement or arrangement with the Employers or any corporation affiliated with the Employers ("Affiliate") within the meaning of Section 1504 of the Internal Revenue Code of 1954, as amended (the "Code")), in the opinion of tax counsel selected by the Employers' 's independent auditors and acceptable to Executive, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Executive by the Employers (or an Affiliate) and includible includable in Executive's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control of the Employers occurred ("Base Amount"), such Severance Benefits shall be reduced, in a manner determined by Executive, to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Executive from the Employers (or an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (A) Executive shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 6(iv), or (B) in the opinion of such tax counsel, the Severance Benefits (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for services actually rendered, within the meaning of Section 280G (b)(4) of the code, and such payments are deductible by the Employers. The Base Amount shall include every type and form of compensation includible includable in Executive's gross income in respect of his employment by the Employers (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G (b) of the Code. For purposes of this Section 6(iv), a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Employers' independent auditors in accordance with the principles of Sections 280G (b)(3) and (4) of the Code. In the event that Employers and/or the Executive do not agree with the opinion of such counsel, (A) Employers shall pay to the Executive the maximum amount of payments and benefits pursuant to Section 6, as selected by the Executive, which such opinion indicates that there is a high probability do not result in the opinion any of counsel may be made without a substantial risk that such payments and benefits will be treated as being non-deductible to the Employers and subject to the imposition of the excise tax imposed under Section 4999 of the Code and (B) Employers may request, and Executive shall have the right to demand the Employers request, a ruling from the IRS as to whether the disputed payments and benefits pursuant to Section 6 hereof have such consequences. Any such request for a ruling from the IRS shall be promptly prepared and filed by the Employers, but in no event later than thirty (30) days from the date of the opinion of counsel referred to above, and shall be subject to Executive's approval prior to filing, which shall not be unreasonably withheld. Employers and Executive agree to be bound by any ruling received from the IRS and to make appropriate payments to each other to reflect any such rulings, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained herein shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified herein or a reduction in payments and benefits other than those provided in this Section 6. In the event that Section 280G, or any successor statute, is repealed, this Section 6 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agreed that, upon issuance of such final regulations this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modifications shall not be unreasonably withheld.

Limitation of Benefits under Certain Circumstances. If the severance benefits payable to Executive under this Section 6 ("Severance Benefits"), or any other payments or benefits received or to be received by Executive from Employers (whether payable pursuant to the terms of this Agreement, any other plan, agreement or arrangement with the Employers or any corporation affiliated with the Employers ("Affiliate") within the meaning of Section 1504 of the Internal Revenue Code of 1954, as amended (the "Code")), in the opinion of tax counsel selected by the Employers' Employer's independent auditors and acceptable to Executive, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Executive by the Employers (or an Affiliate) and includible includable in Executive's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control of the Employers occurred ("Base Amount"), such Severance Benefits shall be reduced, in a manner determined by Executive, to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Executive from the Employers (or an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (A) Executive shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 6(iv6 (iv), or (B) in the opinion of such tax counsel, the Severance Benefits (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for services actually rendered, within the meaning of Section 280G (b)(4) of the code, and such payments are deductible by the Employers. The Base Amount shall include every type and form of compensation includible includable in Executive's gross income in respect of his employment by the Employers (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G (b) of the Code. For purposes of this Section 6(iv6 (iv), a "change in ownership or control" shall have the meaning set forth in Section 280G(b280G (b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Employers' , independent auditors in accordance with the principles of Sections 280G (b)(3) and (4) of the Code. In the event that Employers and/or the Executive do not agree with the opinion of such counsel, (A) Employers shall pay to the Executive the maximum amount of payments and benefits pursuant to Section 6, as selected by the Executive, which such opinion indicates that there is a high probability do not result in the opinion any of counsel may be made without a substantial risk that such payments and benefits will be treated as being non-deductible to the Employers and subject to the imposition of the excise tax imposed under Section 4999 of the Code and (B) Employers may request, and Executive shall have the right to demand the Employers request, a ruling from the IRS as to whether the disputed payments and benefits pursuant to Section 6 hereof have such consequences. Any such request for a ruling from the IRS shall be promptly prepared and filed by the Employers, but in no event later than thirty (30) days from the date of the opinion of counsel referred to above, and shall be subject to Executive's approval prior to filing, which shall not be unreasonably withheld. Employers and Executive agree to be bound by any ruling received from the IRS and to make appropriate payments to each other to reflect any such rulings, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained herein shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified herein or a reduction in payments and benefits other than those provided in this Section 6. In the event that Section 280G, or any successor statute, statute is repealed, this Section 6 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agreed that, upon issuance of such final regulations this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modifications shall not be unreasonably withheld.

Limitation of Benefits under Certain Circumstances. If the severance benefits payable to Executive under this Section 6 ("Severance Benefits"), or any other payments or benefits received or to be received by Executive from Employers Employer (whether payable pursuant to the terms of this Agreement, any other plan, agreement or arrangement with the Employers Employer or any corporation affiliated with the Employers Employer ("Affiliate") within the meaning of Section 1504 of the Internal Revenue Code of 1954, as amended (the "Code")), in the opinion of tax counsel selected by the Employers' Employer's independent auditors and acceptable to Executive, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Executive by the Employers Employer (or an Affiliate) and includible includable in Executive's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control of the Employers Employer occurred ("Base Amount"), such Severance Benefits shall be reduced, in a manner determined by Executive, to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Executive from the Employers Employer (or an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (A) Executive shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 6(iv), or (B) in the opinion of such tax counsel, the Severance Benefits (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for services actually rendered, within the meaning of Section 280G (b)(4) of the code, and such payments are deductible by the EmployersEmployer. The Base Amount shall include every type and form of compensation includible includable in Executive's gross income in respect of his employment by the Employers Employer (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G (b) of the Code. For purposes of this Section 6(iv), a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Employers' Employer's independent auditors in accordance with the principles of Sections 280G (b)(3) and (4) of the Code. In the event that Employers Employer and/or the Executive do not agree with the opinion of such counsel, (A) Employers Employer shall pay to the Executive the maximum amount of payments and benefits pursuant to Section 6, as selected by the Executive, which such opinion indicates that there is a high probability do not result in the opinion any of counsel may be made without a substantial risk that such payments and benefits will be treated as being non-deductible to the Employers Employer and subject to the imposition of the excise tax imposed under Section 4999 of the Code and (B) Employers Employer may request, and Executive shall have the right to demand the Employers Employer's request, a ruling from the IRS as to whether the disputed payments and benefits pursuant to Section 6 hereof have such consequences. Any such request for a ruling from the IRS shall be promptly prepared and filed by the EmployersEmployer, but in no event later than thirty (30) days from the date of the opinion of counsel referred to above, and shall be subject to Executive's approval prior to filing, which shall not be unreasonably withheld. Employers Employer and Executive agree to be bound by any ruling received from the IRS and to make appropriate payments to each other to reflect any such rulings, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained herein shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified herein or a reduction in payments and benefits other than those provided in this Section 6. In the event that Section 280G, or any successor statute, is repealed, this Section 6 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agreed that, upon issuance of such final regulations this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modifications shall not be unreasonably withheld.

Limitation of Benefits under Certain Circumstances. If the severance benefits payable to Executive under this Section 6 ("Severance Benefits"), or any other payments or benefits received or to be received by Executive from Employers Employer (whether payable pursuant to the terms of this Agreement, any other plan, agreement or arrangement with the Employers Employer or any corporation affiliated with the Employers Employer ("Affiliate") within the meaning of Section 1504 of the Internal Revenue Code of 1954, as amended (the "Code")), in the opinion of tax counsel selected by the Employers' Employer's independent auditors and acceptable to Executive, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Executive by the Employers Employer (or an Affiliate) and includible in Executive's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control of the Employers Employer occurred ("Base Amount"), such Severance Benefits shall be reduced, in a manner determined by Executive, to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Executive from the Employers Employer (or an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (A) Executive shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 6(iv), or (B) in the opinion of such tax counsel, the Severance Benefits (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for services actually rendered, within the meaning of Section 280G (b)(4) of the code, and such payments are deductible by the EmployersEmployer. The Base Amount shall include every type and form of compensation includible in Executive's gross income in respect of his employment by the Employers Employer (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G (b) of the Code. For purposes of this Section 6(iv), a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Employers' Employer's independent auditors in accordance with the principles of Sections 280G (b)(3) and (4) of the Code. In the event that Employers Employer and/or the Executive do not agree with the opinion of such counsel, (A) Employers Employer shall pay to the Executive the maximum amount of payments and benefits pursuant to Section 6, as selected by the Executive, which in the opinion of counsel may be made without a substantial risk that such payments and benefits will be treated as non-deductible to the Employers and subject to the excise tax imposed under Section 4999 of the Code and (B) Employers may request, and Executive shall have the right to demand the Employers request, a ruling from the IRS as to whether the disputed payments and benefits pursuant to Section 6 hereof have such consequences. Any such request for a ruling from the IRS shall be promptly prepared and filed by the EmployersEmployer, but in no event later than thirty (30) days from the date of the opinion of counsel referred to above, and shall be subject to Executive's approval prior to filing, which shall not be unreasonably withheld. Employers Employer and Executive agree to be bound by any ruling received from the IRS and to make appropriate payments to each other to reflect any such rulings, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained herein shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified herein or a reduction in payments and benefits other than those provided in this Section 6. In the event that Section 280G, or any successor statute, is repealed, this Section 6 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agreed that, upon issuance of such final regulations this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modifications shall not be unreasonably withheld.

Limitation of Benefits under Certain Circumstances. If the severance benefits payable to Executive under this Section 6 ("Severance Benefits"), or any other payments or benefits received or to be received by Executive from Employers (whether payable pursuant to the terms of this Agreement, any other plan, agreement or arrangement with the Employers or any corporation affiliated with the Employers ("Affiliate") within the meaning of Section 1504 of the Internal Revenue Code of 1954, as amended (the "Code")), in the opinion of tax counsel selected by the Employers' 's independent auditors and acceptable to Executive, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Executive by the Employers (or an Affiliate) and includible includable in Executive's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control of the Employers occurred ("Base Amount"), such Severance Benefits shall be reduced, in a manner determined by Executive, to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Executive from the Employers (or an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (A) Executive shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 6(iv), or (B) in the opinion of such tax counsel, the Severance Benefits (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for services actually rendered, within the meaning of Section 280G section 28OG (b)(4) of the code, and such payments are deductible by the Employers. The Base Amount shall include every type and form of compensation includible includable in Executive's gross income in respect of his employment by the Employers (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G (b) of the Code. For purposes of this Section 6(iv), a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Employers' independent auditors in accordance with the principles of Sections 280G (b)(3) and (4) of the Code. In the event that Employers and/or the Executive do not agree with the opinion of such counsel, (A) Employers shall pay to the Executive the maximum amount of payments and benefits pursuant to Section 6, as selected by the Executive, which such opinion indicates that there is a high probability do not result in the opinion any of counsel may be made without a substantial risk that such payments and benefits will be treated as being non-deductible to the Employers and subject to the imposition of the excise tax imposed under Section 4999 of the Code and (B) Employers may request, and Executive shall have the right to demand the Employers request, a ruling from the IRS as to whether the disputed payments and benefits pursuant to Section 6 hereof have such consequences. Any such request for a ruling from the IRS shall be promptly prepared and filed by the Employers, but in no event later than thirty (30) days from the date of the opinion of counsel referred to above, and shall be subject to Executive's approval prior to filing, which shall not be unreasonably withheld. Employers and Executive agree to be bound by any ruling received from the IRS and to make appropriate payments to each other to reflect any such rulings, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained herein shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified herein or a reduction in payments and benefits other than those provided in this Section 6. In the event that Section 280G, or any successor statute, is repealed, this Section section 6 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agreed that, upon issuance of such final regulations this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modifications shall not be he unreasonably withheld.

Limitation of Benefits under Certain Circumstances. If the severance benefits payable to Executive under this Section 6 ("“Severance Benefits"”), or any other payments or benefits received or to be received by Executive from Employers (whether payable pursuant to the terms of this Agreement, any other plan, agreement or arrangement with the Employers or any corporation affiliated with the Employers ("“Affiliate"”) within the meaning of Section 1504 of the Internal Revenue Code of 1954, as amended (the "“Code"”)), in the opinion of tax counsel selected by the Employers' Employer’s independent auditors and acceptable to Executive, constitute "“parachute payments" ” within the meaning of Section 280G(b)(2) of the Code, and the present value of such "“parachute payments" ” equals or exceeds three times the average of the annual compensation payable to Executive by the Employers (or an Affiliate) and includible includable in Executive's ’s gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control of the Employers occurred ("“Base Amount"”), such Severance Benefits shall be reduced, in a manner determined by Executive, to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Executive from the Employers (or an Affiliate) that are deemed "“parachute payments"”) is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (A) Executive shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 6(iv), or (B) in the opinion of such tax counsel, the Severance Benefits (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "“parachute payments" ” within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for services actually rendered, within the meaning of Section 280G (b)(4280G(b)(4) of the code, and such payments are deductible by the Employers. The Base Amount shall include every type and form of compensation includible includable in Executive's ’s gross income in respect of his employment by the Employers (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G (b280G(b) of the Code. For purposes of this Section 6(iv), a "“change in ownership or control" ” shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Employers' ’ independent auditors in accordance with the principles of Sections 280G (b)(3280G(b)(3) and (4) of the Code. In the event that Employers and/or the Executive do not agree with the opinion of such counsel, (A) Employers shall pay to the Executive the maximum amount of payments and benefits pursuant to Section 6, as selected by the Executive, which such opinion indicates that there is a high probability do not result in the opinion any of counsel may be made without a substantial risk that such payments and benefits will be treated as being non-deductible to the Employers and subject to the imposition of the excise tax imposed under Section 4999 of the Code and (B) Employers may request, and Executive shall have the right to demand the Employers request, a ruling from the IRS as to whether the disputed payments and benefits pursuant to Section 6 hereof have such consequences. Any such request for a ruling from the IRS shall be promptly prepared and filed by the Employers, but in no event later than thirty (30) days from the date of the opinion of counsel referred to above, and shall be subject to Executive's ’s approval prior to filing, which shall not be unreasonably withheld. Employers and Executive agree to be bound by any ruling received from the IRS and to make appropriate payments to each other to reflect any such rulings, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained herein shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified herein or a reduction in payments and benefits other than those provided in this Section 6. In the event that Section 280G, or any successor statute, is repealed, this Section 6 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agreed that, upon issuance of such final regulations this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modifications shall not be unreasonably withheld.

Limitation of Benefits under Certain Circumstances. If the severance benefits payable to Executive under this Section 6 ("Severance Benefits"), or any other payments or benefits received or to be received by Executive from Employers (whether payable pursuant to the terms of this Agreement, any other plan, agreement or arrangement with the Employers or any corporation affiliated with the Employers ("Affiliate") within the meaning of Section 1504 of the Internal Revenue Code of 1954, as amended (the "Code")), in the opinion of tax counsel selected by the Employers' 's independent auditors and acceptable to Executive, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Executive by the Employers (or an Affiliate) and includible includable in Executive's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control of the Employers occurred ("Base Amount"), such Severance Benefits shall be reduced, in a manner determined by Executive, to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Executive from the Employers (or an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (A) Executive shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 6(iv), or (B) in the opinion of such tax counsel, the Severance Benefits (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for services actually rendered, within the meaning of Section 280G (b)(4) of the code, and such payments are deductible by the Employers. The Base Amount shall include every type and form of compensation includible in Executive's gross income in respect of his employment by the Employers (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G (b) of the Code. For purposes of this Section 6(iv), a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Employers' independent auditors in accordance with the principles of Sections 280G (b)(3) and (4) of the Code. In the event that Employers and/or the Executive do not agree with the opinion of such counsel, (A) Employers shall pay to the Executive the maximum amount of payments and benefits pursuant to Section 6, as selected by the Executive, which such opinion indicates that there is a high probability do not result in the opinion any of counsel may be made without a substantial risk that such payments and benefits will be treated as being non-deductible to the Employers and subject to the imposition of the excise tax imposed under Section 4999 of the Code and (B) Employers may request, and Executive shall have the right to demand the Employers request, a ruling from the IRS as to whether the disputed payments and benefits pursuant to Section 6 hereof have such consequences. Any such request for a ruling from the IRS shall be promptly prepared and filed by the Employers, but in no event later than thirty (30) days from the date of the opinion of counsel referred to above, and shall be subject to Executive's approval prior to filing, which shall not be unreasonably withheld. Employers and Executive agree to be bound by any ruling received from the IRS and to make appropriate payments to each other to reflect any such rulings, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained herein shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified herein or a reduction in payments and benefits other than those provided in this Section 6. In the event that Section 280G, or any successor statute, is repealed, this Section 6 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agreed that, upon issuance of such final regulations this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modifications shall not be unreasonably withheld.

Limitation of Benefits under Certain Circumstances. If the severance benefits payable to Executive under this Section 6 ("Severance Benefits"), or any other payments or benefits received or to be received by Executive from Employers (whether payable pursuant to the terms of this Agreement, any other plan, agreement or arrangement with the Employers or any corporation affiliated with the Employers ("Affiliate") within the meaning of Section 1504 of the Internal Revenue Code of 1954, as amended (the "Code")), in the opinion of tax counsel selected by the Employers' 's independent auditors and acceptable to Executive, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Executive by the Employers (or an Affiliate) and includible includable in Executive's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control of the Employers occurred ("Base Amount"), such Severance Benefits shall be reduced, in a manner determined by Executive, to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Executive from the Employers (or an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (A) Executive shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 6(iv), or (B) in the opinion of such tax counsel, the Severance Benefits (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for services actually rendered, within the meaning of Section 280G (b)(4) of the code, and such payments are deductible by the Employers. The Base Amount shall include every type and form of compensation includible includable in Executive's gross income in respect of his employment by the Employers (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G (b) of the Code. For purposes of this Section 6(iv), a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Employers' independent auditors in accordance with the principles of Sections 280G (b)(3) and (4) of the Code. In the event that Employers and/or the Executive do not agree with the opinion of such counsel, (A) Employers shall pay to the Executive the maximum amount of payments and benefits pursuant to Section 6, as selected by the Executive, which in the opinion of counsel may be made without a substantial risk that such payments and benefits will be treated as non-deductible to the Employers and subject to the excise tax imposed under Section 4999 of the Code and (B) Employers may request, and Executive shall have the right to demand the Employers request, a ruling from the IRS as to whether the disputed payments and benefits pursuant to Section 6 hereof have such consequences. Any such request for a ruling from the IRS shall be promptly prepared and filed by the Employers, but in no event later than thirty (30) days from the date of the opinion of counsel referred to above, and shall be subject to Executive's approval prior to filing, which shall not be unreasonably withheld. Employers and Executive agree to be bound by any ruling received from the IRS and to make appropriate payments to each other to reflect any such rulings, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained herein shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified herein or a reduction in payments and benefits other than those provided in this Section 6. In the event that Section 280G, or any successor statute, is repealed, this Section 6 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agreed that, upon issuance of such final regulations this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modifications shall not be unreasonably withheld.

Limitation of Benefits under Certain Circumstances. If the severance benefits payable to Executive under this Section 6 ("Severance Benefits"), or any other payments or benefits received or to be received by Executive from Employers (whether payable pursuant to the terms of this Agreement, any other plan, agreement or arrangement with the Employers or any corporation affiliated with the Employers ("Affiliate") within the meaning of Section 1504 of the Internal Revenue Code of 1954, as amended (the "Code")), in the opinion of tax counsel selected by the Employers' 's independent auditors and acceptable to Executive, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Executive by the Employers (or an Affiliate) and includible includable in Executive's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control of the Employers occurred ("Base Amount"), such Severance Benefits shall be reduced, in a manner determined by Executive, to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Executive from the Employers (or an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (A) Executive shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 6(iv), or (B) in the opinion of such tax counsel, the Severance Benefits (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for services actually rendered, within the meaning of Section 280G (b)(4) of the code, and such payments are deductible by the Employers. The Base Amount shall include every type and form of compensation includible includable in Executive's gross income in respect of his employment by the Employers (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G (b) of the Code. For purposes of this Section 6(iv), a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Employers' independent auditors in accordance with the principles of Sections 280G (b)(3) and (4) of the Code. In the event that Employers and/or the Executive do not agree with the opinion of such counsel, (A) Employers shall pay to the Executive the maximum amount of payments and benefits pursuant to Section 6, as selected by the Executive, which in the opinion of counsel may be made without a substantial risk that such payments and benefits will be treated as non-deductible to the Employers and subject to the excise tax imposed under Section 4999 of the Code and (B) Employers may request, and Executive shall have the right to demand the Employers request, a ruling from the IRS as to whether the disputed payments and benefits pursuant to Section 6 hereof have such consequences. Any such request for a ruling from the IRS shall be promptly prepared and filed by the Employers, but in no event later than thirty (30) days from the date of the opinion of counsel referred to above, and shall be subject to Executive's approval prior to filing, which shall not be unreasonably withheld. Employers and Executive agree to be bound by any ruling received from the IRS and to make appropriate payments to each other to reflect any such rulings, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained herein shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified herein or a reduction in payments and benefits other than those provided in this Section 6. In the event that Section 280G, or any successor statute, is repealed, this Section 6 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agreed that, upon issuance of such final regulations this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modifications shall not be unreasonably withheld.