Common use of Limitation on Change in Control Payments Clause in Contracts

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this Option as provided above (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments that the Optionee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated herein will be reduced to the largest amount that will result in no portion of the payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any payments to the Optionee under Section 3.3(a) of this Agreement will be treated as payments arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this Option as provided above (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments that the Optionee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated herein will be reduced to the largest amount that will result in no portion of the payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any payments to the Optionee under Section 3.3(a) of this Agreement will be treated as payments arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments “payments” that the Optionee has the right to receive from the Company or any corporation which that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated as set forth herein will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, howeverthat such reduction shall be made only if the aggregate amount of the payments after such reduction exceeds the difference between (A) the amount of such payments absent such reduction minus (B) the aggregate amount of the excise tax imposed under Section 4999 of the Code attributable to any such excess parachute payments. Notwithstanding the foregoing sentence, that if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any payments “payments” to the Optionee under Section 3.3(a) of this Agreement as provided herein will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 Agreement to the contrary, if, with respect to the OptioneeRecipient, the acceleration of the vesting of this Option Restricted Shares as provided above in Section 2 of this Agreement (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), together with any other payments that which the Optionee Recipient has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated herein Recipient will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided. Without limiting the prior sentence, howeverthe Recipient will have the discretion to determine which “payments” will be reduced so that no portion of such “payments” are subject to the excise tax imposed by Section 4999 of the Code. Notwithstanding anything to the contrary in this Section 9, that if the Optionee Recipient is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections Section 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) 9 will not apply, and any payments “payments” to the Optionee under Recipient pursuant to Section 3.3(a) 2 of this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “"payment” " within the meaning of Section 280G(b)(2) of the Code), together with any other payments that which the Optionee has the right to receive from the Company or any corporation which is a member of an “"affiliated group” " (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), then the payments to the Optionee stated as set forth herein will be reduced to the largest amount that as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “"payments” " under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “"payments” " will be reduced, that such “"payments” " will not be reduced or that such “"payments” " will be “"grossed up” " for tax purposes), then this Section 3.3(b) will not apply, and any payments "payments" to the Optionee under pursuant to Section 3.3(a) of this Agreement will be treated as payments "payments" arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 11.3 or 11.4 of the Plan to the contrary, if, with respect to the Optioneea Participant, the acceleration of the vesting exercisability of this an Option as provided above in Section 11.3 or the payment of cash or shares of Common Stock in exchange for all or part of an Option as provided in Section 11.4 (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments “payments” that the Optionee such Participant has the right to receive from the Company or any corporation which that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to such Participant pursuant to Section 11.3 or 11.4 of the Optionee stated herein Plan will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee a Participant is subject to a separate agreement with the Company or a Subsidiary which specifically provides that expressly addresses the potential application payments attributable to one or more forms of Sections 280G employee stock incentives or 4999 to payments made in lieu of the Code (including, without limitation, that “payments” employee stock incentives will not reduce any other payments under such agreement agreement, even if it would constitute an excess parachute payment, or otherwise will be reduced, provides that the Optionee Participant will have the discretion to determine which “payments” payments will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes)in order to avoid an excess parachute payment, then the limitations of this Section 3.3(b) will 11.4 will, to that extent, not apply, and any payments to the Optionee under Section 3.3(a) of this Agreement will be treated as payments arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments that which the Optionee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated as set forth herein will be reduced to the largest amount that as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any payments “payments” to the Optionee under pursuant to Section 3.3(a) of this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 2.3 to the contrary, if, with respect to the OptioneeGrantee, the acceleration of the vesting of this Option the Award Shares as provided above (which acceleration could be deemed a “"payment” " within the meaning of Section 280G(b)(2) of the Code), together with any other payments that which the Optionee Grantee has the right to receive from the Company or any corporation which is a member of an “"affiliated group” " (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), then the payments to the Optionee stated Grantee as set forth herein will be reduced to the largest amount that amounts as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee Grantee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses specifically provides that payments to the potential application of Sections 280G Grantee will not be reduced even if such payments would constitute excess parachute payments or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, provides that the Optionee Grantee will have the discretion to determine which “payments” payments will be reduced, that reduced in order to avoid excess parachute payments (regardless of whether such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposesseparate agreement specifically references Award Shares under this Agreement), then the limitations of this Section 3.3(b2.3(d) will will, to that extent, not apply, and any payments to the Optionee under Section 3.3(a) of this Agreement will be treated as payments arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “"payment” " within the meaning of Section 280G(b)(2) of the Code), together with any other payments that which the Optionee has the right to receive from the Company or any corporation which is a member of an “"affiliated group” " (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated as set forth herein will be reduced to the largest amount that as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “"payments” " under such agreement or otherwise will be reduced, that such "payments" will not be reduced or that the Optionee will have the discretion to determine which “"payments” " will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any payments "payments" to the Optionee under pursuant to Section 3.3(a) of this Agreement will be treated as payments "payments" arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 2.3 to the contrary, if, with respect to the OptioneeGrantee, the acceleration of the vesting of this Option the Award Shares as provided above (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), together with any other payments that which the Optionee Grantee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated Grantee as set forth herein will be reduced to the largest amount that amounts as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that such reduction shall be made only if the Optionee aggregate amount of the payments after such reduction exceeds the difference between (A) the amount of such payments absent such reduction minus (B) the aggregate amount of the excise tax imposed under Section 4999 of the Code attributable to any such excess parachute payments. Notwithstanding the foregoing sentence, if the Grantee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that such “payments” will not be reduced or that the Optionee Grantee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b2.3(b) will not apply, and any payments “payments” to the Optionee under Grantee pursuant to Section 3.3(a2.3(a) of this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 Agreement to the contrary, if, with respect to the Optionee, if the acceleration of the vesting exercisability of this an Option as provided above in Section 8.1(a) or the payment of cash or shares of Common Stock in exchange for all or part of an Option as provided in Section 8.1(b) (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”)), together with any other payments “payments” that the such Optionee has the right to receive from the Company or any corporation which that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the such Optionee stated herein pursuant to Section 8.1 will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee is subject to a separate agreement with the Company which specifically provides that payments attributable to one or a Subsidiary that expressly addresses the potential application more forms of Sections 280G employee stock incentives or 4999 to payments made in lieu of the Code (including, without limitation, that “payments” employee stock incentives will not reduce any other payments under such agreement agreement, even if it would constitute an excess parachute payment, or otherwise will be reduced, provides that the Optionee will have the discretion to determine which “payments” payments will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes)in order to avoid an excess parachute payment, then the limitations of this Section 3.3(b) will 8.2 will, to that extent, not apply, and any payments to the Optionee under Section 3.3(a) of this Agreement will be treated as payments arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 2.3 to the contrary, if, with respect to the OptioneeGrantee, the acceleration of the vesting of this Option the Award Shares as provided above (which acceleration could be deemed a “"payment” " within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code")), together with any other payments that which the Optionee Grantee has the right to receive from the Company or any corporation which is a member of an “"affiliated group” " (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated Grantee as set forth herein will be reduced to the largest amount that as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee Grantee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses specifically provides that payments to the potential application of Sections 280G Grantee will not be reduced even if such payments would constitute excess parachute payments or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, provides that the Optionee Grantee will have the discretion to determine which “payments” payments will be reduced, that reduced in order to avoid excess parachute payments (regardless of whether such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposesseparate agreement specifically references Award Shares under this Agreement), then the limitations of this Section 3.3(b2.3(b) will will, to that extent, not apply, and any payments to the Optionee under Section 3.3(a) of this Agreement will be treated as payments arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “"payment” " within the meaning of Section 280G(b)(2) of the Code), together with any other payments that which the Optionee has the right to receive from the Company or any corporation which is a member of an “"affiliated group” " (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated as set forth herein will be reduced to the largest amount that as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “"payments” " under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “"payments” " will be reduced, that such “"payments” " will not be reduced or that such “"payments” " will be “"grossed up” " for tax purposes), then this Section 3.3(b) will not apply, and any payments "payments" to the Optionee under pursuant to Section 3.3(a) of this Agreement will be treated as payments "payments" arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 5 to the contrary, if, with respect to the OptioneeGrantee, the acceleration of the vesting distribution of this Option the Performance Shares as provided above (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), together with any other payments that which the Optionee Grantee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated Grantee as set forth herein will be reduced to the largest amount that amounts as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee Grantee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that such “payments” will not be reduced or that the Optionee Grantee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b5.3(b) will not apply, and any payments “payments” to the Optionee under Grantee pursuant to Section 3.3(a) 5.2 of this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this the Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments “payments” that the Optionee has the right to receive from the Company or any corporation which that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated as set forth herein will be reduced (or acceleration of vesting eliminated) to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that such reduction will be made only if the aggregate amount of the payments after such reduction exceeds the difference between (A) the amount of such payments absent such reduction minus (B) the aggregate amount of the excise tax imposed under Section 4999 of the Code attributable to any such excess parachute payments; and provided, further, that such payments will be reduced (or acceleration of vesting eliminated) by first reducing or eliminating payments or benefits the full value of which are required to be recognized as contingent upon a Change in Control (determined in accordance with Treasury Regulation § 1.280G-1, Q/A-24), followed by reducing or eliminating payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from such date. Notwithstanding the foregoing sentence, if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes)Code, then this Section 3.3(b) will not apply, and any payments “payments” to the Optionee under Section 3.3(a) of this Agreement as provided herein will be treated as payments “payments” arising under such separate agreement; provided, however, such separate agreement may not modify the time or form of payment under any Incentive Award that constitutes deferred compensation subject to Section 409A of the Code if the modification would cause such Incentive Award to become subject to the adverse tax consequences specified in Section 409A of the Code.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 12(c) or 12(d) of the Plan to the contrary, if, with respect to the Optioneea Participant, the acceleration of the vesting of this Option an Incentive Award as provided above in Section 12(c) or the payment of cash in exchange for all or part of an Incentive Award as provided in Section 12(d) (which acceleration or payment could be deemed a “"payment” " within the meaning of Section 280G(b)(2) of the Code), together with any other payments that the Optionee "payments" which such Participant has the right to receive from the Company or any corporation which that is a member of an “"affiliated group” " (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), then the payments "payments" to such Participant pursuant to Section 12(c) or 12(d) of the Optionee stated herein Plan will be reduced to the largest amount that as will result in no portion of the payments such "payments" being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee a Participant is subject to a separate agreement with the Company or a Subsidiary of the Company that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “"payments” " under such agreement or otherwise will not be reduced, reduced or that the Optionee Participant will have the discretion to determine which “"payments” " will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then the limitations of this Section 3.3(b12(e) will not apply, and any payments "payments" to the Optionee under a Participant pursuant to Section 3.3(a12(c) or 12(d) of this Agreement the Plan will be treated as payments "payments" arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “"payment” " within the meaning of Section 280G(b)(2) of the Code), together with any other payments that which the Optionee has the right to receive from the Company or any corporation which is a member of an “"affiliated group” " (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated as set forth herein will be reduced to the largest amount that as, in the sole judgment of the Committee, will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “"payments” " under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “"payments” " will be reduced, that such “"payments” " will not be reduced or that such “"payments” " will be “"grossed up” " for tax purposes), then this Section 3.3(b) will not apply, and any payments to the Optionee under Section 3.3(a) of this Agreement will be treated as payments arising under such separate agreement.any

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “"payment” " within the meaning of Section 280G(b)(2) of the Code), together with any other payments that which the Optionee has the right to receive from the Company or any corporation which is a member of an “"affiliated group” " (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated as set forth herein will be reduced to the largest amount that as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “"payments” " under such agreement or otherwise will not be reduced, reduced or that the Optionee will have the discretion to determine which “"payments” " will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then the limitations of this Section 3.3(b3.3(c) will not apply, and any payments "payments" to the Optionee under pursuant to this Section 3.3(a3.3(c) or pursuant to Section 9(c) or 9(d) of this Agreement the Plan will be treated as payments "payments" arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 Agreement to the contrary, if, with respect to the OptioneeGrantee, the acceleration of the vesting of this Option Restricted Shares as provided above in Section 5(b) of this Agreement (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments that the Optionee Grantee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated herein Grantee will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided. Without limiting the prior sentence, howeverGrantee will have the discretion to determine which “payments” will be reduced so that no portion of such “payments” are subject to the excise tax imposed by Section 4999 of the Code. Notwithstanding anything to the contrary in this Section 10(g), that if the Optionee Grantee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections Section 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b10(g) will not apply, and any payments “payments” to the Optionee under Grantee pursuant to Section 3.3(a5(b) of this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 2.5(a) to the contrary, if, with respect to the OptioneeGrantee, the acceleration of the vesting of this Option as provided above Restricted Stock Award (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), together with any other payments that which the Optionee Grantee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated Grantee as set forth herein will be reduced to the largest amount that as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee Grantee is subject to a separate agreement with the Company (including that certain letter agreement between Company and Grantee, dated , as the same may subsequently be amended or a Subsidiary replaced from time to time (the “Change in Control Agreement”)) that expressly addresses the potential application of Sections 280G or 4999 of the Code to amounts to be received by Grantee upon a Change of Control (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee Grantee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b2.5(b) will not apply, and any payments “payments” to the Optionee under Grantee pursuant to Section 3.3(a2.5(a) of this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 Agreement to the contrary, if, with respect to the OptioneeEmployee, the acceleration of the vesting of this Option Restricted Shares as provided above in Section 3 of this Agreement (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), together with any other payments that which the Optionee Employee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated herein Employee will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided. Without limiting the prior sentence, howeverthe Employee will have the discretion to determine which “payments” will be reduced so that no portion of such “payments” are subject to the excise tax imposed by Section 4999 of the Code. Notwithstanding anything to the contrary in this Section 8, that if the Optionee Employee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections Section 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) 8 will not apply, and any payments “payments” to the Optionee under Employee pursuant to Section 3.3(a) 3 of this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 Agreement to the contrary, if, with respect to the OptioneeEmployee, the acceleration of the vesting of this Option Restricted Shares as provided above in Section 3 of this Agreement (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), together with any other payments that which the Optionee Employee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated herein Employee will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided. Without limiting the prior sentence, howeverthe Employee will have the discretion to determine which “payments” will be reduced so that no portion of such “payments” are subject to the excise tax imposed by Section 4999 of the Code. Notwithstanding anything to the contrary in this Section 9, that if the Optionee Employee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections Section 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) 9 will not apply, and any payments “payments” to the Optionee under Employee pursuant to Section 3.3(a) 3 of this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 2.3 to the contrary, if, with respect to the OptioneeGrantee, the acceleration of the vesting of this Option the Award Shares as provided above (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments “payments” that the Optionee Grantee has the right to receive from the Company or any corporation which that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated Grantee as set forth herein will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that such reduction shall be made only if the Optionee aggregate amount of the payments after such reduction exceeds the difference between (A) the amount of such payments absent such reduction minus (B) the aggregate amount of the excise tax imposed under Section 4999 of the Code attributable to any such excess parachute payments. Notwithstanding the foregoing sentence, if the Grantee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee Grantee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b2.3(b) will not apply, and any payments “payments” to the Optionee under Section 3.3(a) of this Agreement Grantee as provided herein will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 Agreement to the contrary, if, with respect to the OptioneeGrantee, the acceleration of the vesting of this Option Restricted Shares as provided above in Section (b) of this Agreement (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments that the Optionee Grantee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated herein Grantee will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided. Without limiting the prior sentence, howeverGrantee will have the discretion to determine which “payments” will be reduced so that no portion of such “payments” are subject to the excise tax imposed by Section 4999 of the Code. Notwithstanding anything to the contrary in this Section 0, that if the Optionee Grantee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections Section 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) 0 will not apply, and any payments “payments” to the Optionee under Grantee pursuant to Section 3.3(a(b) of this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 Agreement to the contrary, if, with respect to the OptioneeEmployee, the acceleration of the vesting of this Option Restricted Shares as provided above in Section 2 (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), together with any other payments that which the Optionee Employee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated herein Employee will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided. Without limiting the prior sentence, howeverthe Employee will have the discretion to determine which “payments” will be reduced so that no portion of such “payments” are subject to the excise tax imposed by Section 4999 of the Code. Notwithstanding anything to the contrary in this Section 7, that if the Optionee Employee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections Section 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) 7 will not apply, and any payments “payments” to the Optionee under Section 3.3(a) of Employee pursuant to this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 2.5 to the contrary, if, with respect to the OptioneeGrantee, the acceleration of the vesting of this Option as provided above Restricted Stock Award (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), together with any other payments that which the Optionee Grantee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated Grantee as set forth herein will be reduced to the largest amount that as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee Grantee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee Grantee will have the discretion to determine which “payments” payments will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b2.5(b) will not apply, and any payments “payments” to the Optionee under Grantee pursuant to Section 3.3(a2.5(a) of this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “"payment” " within the meaning of Section 280G(b)(2) of the Code), together with any other payments that which the Optionee has the right to receive from the Company or any corporation which is a member of an “"affiliated group” " (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated as set forth herein will be reduced to the largest amount that as will result in no portion of the payments such "payments" being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “"payments” " under such agreement or otherwise will not be reduced, reduced or that the Optionee will have the discretion to determine which “"payments” " will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then the limitations of this Section 3.3(b3.3(c) will not apply, and any payments "payments" to the Optionee under pursuant to this Section 3.3(a3.3(c) or pursuant to Section 9(c) or 9(d) of this Agreement the Plan will be treated as payments "payments" arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 2.3 to the contrary, if, with respect to the OptioneeGrantee, the acceleration of the vesting of this Option the Award Shares as provided above (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments “payments” that the Optionee Grantee has the right to receive from the Company or any corporation which that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated Grantee as set forth herein will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that such reduction shall be made only if the Optionee aggregate amount of the payments after such reduction exceeds the difference between (A) the amount of such payments absent such reduction minus (B) the aggregate amount of the excise tax imposed under Section 4999 of the Code attributable to any such excess parachute payments. Notwithstanding the foregoing sentence, if the Grantee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee Grantee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any payments “payments” to the Optionee under Section 3.3(a) of this Agreement Grantee as provided herein will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 12.1 or 12.2 to the contrary, if, with respect to the Optioneea Participant, the acceleration of the vesting of this Option an Award as provided above in Section 12.1 or the payment of cash in exchange for all or part of a Stock-Based Award as provided in Section 12.2 (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments “payments” that the Optionee such Participant has the right to receive from the Company or any corporation which that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated herein will such Participant pursuant to Section 12.1 or 12.2 shall be reduced (or acceleration of vesting eliminated) to the largest amount that will as shall result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that such reduction shall be made only if the Optionee aggregate amount of the payments after such reduction exceeds the difference between (i) the amount of such payments absent such reduction, minus (ii) the aggregate amount of the excise tax imposed under Section 4999 of the Code attributable to any such excess parachute payments, and provided further that such payments shall be reduced (or acceleration of vesting eliminated) in the following order: (a) Options with an exercise price above fair market value that have a positive value for purposes of Section 280G of the Code, (b) pro rata among Awards that constitute deferred compensation under Section 409A of the Code, and (c) finally, among the Awards that are not subject to Section 409A of the Code. Notwithstanding the foregoing sentence, if a Participant is subject to a separate agreement with the Company or a Subsidiary an Affiliate that expressly addresses the potential application of Sections Section 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes)Code, then this Section 3.3(b) will 12.3 shall not apply, apply and any payments “payments” to the Optionee under a Participant pursuant to Section 3.3(a) of this Agreement will 12.1 or 12.2 shall be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 2.3 to the contrary, if, with respect to the Optioneea Grantee, the acceleration of the vesting of this Option the Award Shares as provided above (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of Internal Revenue Code of 1986, as amended (the “Code”)), together with any other payments “payments” that the Optionee such Grantee has the right to receive from the Company or any corporation which that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments “payments” to the Optionee stated Grantee as set forth herein will be reduced to the largest amount that as will result in no portion of the payments such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee Grantee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee Grantee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b2.3(b) will not apply, and any payments “payments” to the Optionee under Grantee pursuant to Section 3.3(a2.3(a) of this Agreement will be treated as payments “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 3.3 to the contrary, if, with respect to the Optionee, the acceleration of the vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “"payment” " 2 within the meaning of Section 280G(b)(2) of the Code), together with any other payments that which the Optionee has the right to receive from the Company or any corporation which is a member of an “"affiliated group” " (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “"parachute payment” " (as defined in Section 280G(b)(2) of the Code), the payments to the Optionee stated as set forth herein will be reduced to the largest amount that as will result in no portion of the such payments being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that “"payments” " under such agreement or otherwise will be reduced, that such "payments" will not be reduced or that the Optionee will have the discretion to determine which “"payments” " will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any payments "payments" to the Optionee under pursuant to Section 3.3(a) of this Agreement will be treated as payments "payments" arising under such separate agreement.