Common use of Limitation on Parachute Payments Clause in Contracts

Limitation on Parachute Payments. (a) In the event that the payments or other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s benefits under this Agreement shall be either (a) delivered in full, or (b) delivered to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Employee’s stock awards. (b) Unless the Company and Employee otherwise agree in writing, any determination required under this Section 12 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 12, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12.

Limitation on Parachute Payments. If, in the opinion of tax -------------------------------- counsel selected by the Company and NEBS and acceptable to the Executive, the Severance Payment (ain its full amount or as partially reduced, as the case may be) In the event that the payments or any other benefits provided for in this Agreement payment or otherwise payable to Employee (i) constitute “benefit which constitutes a "parachute payments” payment" within the meaning of Section section 280G(b)(2) of the Code (whether made pursuant to this Agreement or otherwise) exceeds, either individually or in the aggregate, the amount that is deductible by the Company or NEBS by reason of section 280G, and in the opinion of such tax counsel, the Severance Payment (in its full amount or as partially reduced, as the case may be) or any other payments or benefits which constitute "parachute payments" within the meaning of section 280G of the Code are not reasonable compensation for services actually rendered or to be rendered, within the meaning of section 280G(b)(4) of the Code, and (ii) would the Severance Payment and/or such other payments or benefits shall be subject to reduced by the excise tax imposed by Section 4999 excess of the Code (aggregate "parachute payments" over that amount which could be paid to or for the “Excise Tax”), then Employee’s benefits under this Agreement shall be either (a) delivered in full, or (b) delivered to such lesser extent which would result in no Executive without any portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “"parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction " not being deductible by reason of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Employee’s stock awards. (b) Unless the Company and Employee otherwise agree in writing, any determination required under this Section 12 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 12, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section section 280G and 4999 of the Code. The Employee value of any non-cash benefit or any deferred cash payments shall provide be determined by the Company and NEBS in accordance with the principles of section 280G of the Code and the regulations promulgated thereunder. "If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this subsection, the aggregate "parachute payments" paid to or for the Executive's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by the Company or its Affiliates (including without limitation NEBS) by reason of section 280G of the Code, then the Executive shall have the obligation to pay the Company upon demand an amount equal to the Accountants sum of (A) the excess of the aggregate "parachute payments" paid to or for the Executive's benefit over the aggregate "parachute payments" that would have been paid to or for the Executive's benefit without any portion of such information "parachute payments" not being deductible by reason of section 280G of the Code; and documents (B) interest on the amount set forth in clause (A) of this sentence at the applicable Federal rate (as defined in section 1274(d) of the Accountants may reasonably request Code) from the date of the Executive's receipt of such excess until the date of such payment." 5. If the Merger Agreement is terminated for any reason prior to the occurrence of the Merger, then this First Amendment shall automatically be deemed to have been terminated and cancelled, without any further liability of either party or NEBS to each other, and the terms of the Change in order Control Agreement, without giving effect to make a determination under the terms of this Section 12First Amendment, shall automatically be reinstated and thereafter shall remain in full force and effect. 6. Except to the extent expressly amended hereby, the provisions of the Change in Control Agreement shall remain in full force and effect. 7. The Company validity, interpretation, construction and performance of this First Amendment shall bear all costs be governed by the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12laws of the State of Minnesota.

Limitation on Parachute Payments. (a) In the event that the payments or payment and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “"parachute payments” " within the meaning of Section 280G(b)(2) 280G of the Code, Code and (ii) but for this Section 12(b), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s Executive's payments and benefits under this Agreement shall will be either either: (ai) delivered in full, or or (bii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or and benefits constituting “"parachute payments” " is necessary pursuant so that benefits are delivered to the foregoing provisiona lesser extent, reduction shall will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted "contingent on a change in ownership or control" (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of stock equity awards; , and (iv) reduction of employee benefits. If Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not Deferred Payments and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of Employee’s stock Executive's equity awards. (b) Unless the Company and Employee otherwise agree in writing, any . Any determination required under this Section 12 shall 12(b) will be made in writing by the Company’s independent public accountants engaged by the Company for general audit purposes immediately prior to the Change in Control (the “"Accountants”"), whose good faith determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyCompany is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or if such firm otherwise cannot perform the calculations, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. For purposes of making the calculations required by this Section 1212(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Employee shall provide Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12Section. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12section.

Limitation on Parachute Payments. (a) In the event that the payments or severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code, Code and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and benefits under this Agreement shall will be either either: (a) delivered in full, or or (b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or and benefits constituting “parachute payments” is necessary pursuant so that benefits are delivered to the foregoing provisiona lesser extent, reduction shall will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of stock equity awards; , and (iv) reduction of employee benefits. If Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not Deferred Payments and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock equity awards. (b) Unless the Company and Employee otherwise agree in writing, any . Any determination required under this Section 12 shall 4 will be made in writing by the Company’s independent public accountants engaged by the Company for general audit purposes immediately prior to the Change in Control (the “Accountants”), whose good faith determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyCompany is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or if such firm otherwise cannot perform the calculations, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. For purposes of making the calculations required by this Section 124, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Employee shall provide Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12Section. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 124.

Limitation on Parachute Payments. (a) In the event that the payments or payment and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code, Code and (ii) but for this Section 10, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and benefits under this Agreement shall will be either (a) either: a. delivered in full, or (b) or b. delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or and benefits constituting “parachute payments” is necessary pursuant so that benefits are delivered to the foregoing provisiona lesser extent, reduction shall will occur in the following order: (i) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G); (ii) cancellation of accelerated vesting of equity awards; (iii) reduction of cash payments; cancellation of accelerated vesting of stock awards; and (iv) reduction of employee benefits. If Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not deferred payments and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock equity awards. (b) Unless the Company and Employee otherwise agree in writing, any . Any determination required under this Section 12 shall 10 will be made in writing by the Company’s independent public accountants engaged by the Company for general audit purposes immediately prior to the Change of Control (the “Accountants”), whose good faith determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyCompany is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, or if such firm otherwise cannot perform the calculations, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. For purposes of making the calculations required by this Section 1210, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Employee shall provide Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 1210. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 1210.

Limitation on Parachute Payments. (a) In If, in the event that opinion of tax counsel selected by HDI and acceptable to Executive, the Severance Payment plus all other payments or benefits which constitute “parachute payments” within the meaning of Internal Revenue Code Section 280G(b)(2) exceeds the amount that is deductible by HDI by reason of Section 280G, and in the opinion of such tax counsel, the Severance Payment (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits provided for in this Agreement or otherwise payable to Employee (i) which constitute “parachute payments” within the meaning of Section 280G(b)(2) are not reasonable compensation for services actually rendered or to be rendered, within the meaning of Section 280G(b)(4), the Severance Payment shall be reduced by the excess of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s benefits under this Agreement shall be either (a) delivered in full, or (b) delivered to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting aggregate “parachute payments” that would be paid to or for the Executive without any portion of such “parachute payments” not being deductible by reason of Code Section 280G. The value of any non-cash benefit or any deferred cash payments shall be determined by HDI in accordance with the principles of Code Sections 280G(d)(3) and (4). If it is necessary established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the foregoing provisiongood faith of Executive and HDI in applying the terms of this subsection, reduction the aggregate “parachute payments” paid to or for Executive’s benefit are in an amount that would result in any portion of such “parachute payments” not being deductible by HDI or its Affiliates by reason of Code Section 280G, then Executive shall occur in have an obligation to pay HDI upon demand an amount equal to the following order: reduction sum of cash (A) the excess of the aggregate “parachute payments; cancellation ” paid to or for the Executive’s benefit over the aggregate “parachute payments” that would have been paid to or for the Executive’s benefit without any portion of accelerated vesting such “parachute payments” not being deductible by reason of stock awardsCode Section 280G; and reduction (B) interest on the amount set forth in clause (A) of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled this sentence at the applicable Federal rate (as defined in the reverse order of Code Section 1274(d)) from the date of grant Executive’s receipt of Employee’s stock awardssuch excess until the date of such payment. (b) Unless the Company and Employee otherwise agree in writing, any determination required under this Section 12 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 12, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12.

Limitation on Parachute Payments. (a) In the event that the payments or and other benefits provided for in this Agreement or otherwise payable to Employee the Executive (isuch payments and benefits, the “280G Payments”) (a) constitute “"parachute payments” " within the meaning of Section 280G(b)(2) 280G of the Code, Code and (iib) but for this Section 22, would be subject to the excise tax imposed by Section 4999 of the Code (Code, then, subject to the “Excise Tax”)immediately following sentence, then Employee’s benefits the 280G Payments under this Agreement shall will be either (a) delivered in full, or (b) delivered reduced to the extent such lesser extent which reduction would result in no portion of such benefits the 280G Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-excise tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If Notwithstanding the foregoing, the reduction contemplated by this Section 22 shall be made only if the Accountants (as defined below) determine that such reduction would result in the Executive retaining a greater amount of the 280G Payments on a net after-tax basis than if no reduction were made. Any reduction in payments or benefits constituting “parachute payments” is necessary 280G Payments pursuant to the foregoing provision, reduction shall this Section 22 will occur in the following order: reduction (i) cash payments that may not be valued under Treas. Reg. § 1.280G-1, Q&A-24(c) (“24(c)”), (ii) equity-based payments that may not be valued under 24(c), (iii) cash payments that may be valued under 24(c), (iv) equity-based payments that may be valued under 24(c) and (v) other types of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. If Within any such category of 280G Payments (that is, (i), (ii), (iii), (iv) or (v)), a reduction shall occur first with respect to amounts that are not deferred payments and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of Employeethe Executive's equity awards. To the extent requested by the Executive, the Bank Group shall cooperate with the Executive in good faith in valuing, and the Accountants shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s stock awards. agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Bank Group (bwithin the meaning of Q&A-2(b) Unless of the Company final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Employee otherwise agree Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in writing, any accordance with Q&A-5(a) of the final regulations under Section 280G of the Code. Any determination required under this Section 12 shall 22 will be made in writing by the Company’s Parent's independent public accountants engaged by the Parent for general audit purposes immediately prior to the Change of Control (the “"Accountants”"), whose good faith determination shall will be conclusive and binding upon Employee the Executive and the Company Bank Group for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyParent is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, or if such firm otherwise cannot perform the calculations, the Parent shall appoint a nationally recognized independent registered public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code to make the determinations required hereunder and to act as the Accountants. For purposes of making the calculations required by this Section 1222, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Employee shall provide Bank Group and the Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12Section. The Company shall Parent will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12Section.

Limitation on Parachute Payments. (a) In the event that the payments or payment and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code, Code and (ii) but for this Section 12(b), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and benefits under this Agreement shall will be either either: (ai) delivered in full, or or (bii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or and benefits constituting “parachute payments” is necessary pursuant so that benefits are delivered to the foregoing provisiona lesser extent, reduction shall will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of stock equity awards; , and (iv) reduction of employee benefits. If Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not Deferred Payments and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock equity awards. (b) Unless the Company and Employee otherwise agree in writing, any . Any determination required under this Section 12 shall 12(b) will be made in writing by the Company’s independent public accountants engaged by the Company for general audit purposes immediately prior to the Change in Control (the “Accountants”), whose good faith determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyCompany is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or if such firm otherwise cannot perform the calculations, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. For purposes of making the calculations required by this Section 1212(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Employee shall provide Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12Section. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12section.

Limitation on Parachute Payments. (a) In Notwithstanding any other provision of this Agreement or any other plan, arrangement, or agreement to the event that contrary, if any of the payments or other benefits provided or to be provided by the Company to the Executive or for in the Executive’s benefit pursuant to the terms of this Agreement or otherwise payable to Employee (i“Covered Payments”) constitute parachute payments (“parachute payments” Parachute Payments”) within the meaning of Section 280G(b)(2) 280G of the CodeCode and would, and (ii) would but for this Section 6 be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then Employee’s benefits under this Agreement the Covered Payments shall be payable either (ai) delivered in full, full or (bii) delivered after reduction to such lesser the minimum extent which would result in necessary to ensure that no portion of such benefits being the Covered Payments is subject to the Excise Tax, whichever of the foregoing amounts, (i) or (ii) results in the Executive’s receipt on an after-tax basis of the greatest amount of benefits after taking into account the applicable federal, state state, local and local income foreign income, employment and excise taxes and (including the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits), notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Employee’s stock awardsExcise Tax. (b) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 12 6 shall be made in writing in good faith by the Company’s independent public accountants a nationally recognized accounting firm (the “Accountants”). In the event of a reduction in Covered Payments hereunder, whose determination the reduction of the total payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the Code: (i) first, any cash severance payments due under this Agreement shall be conclusive reduced and binding upon Employee and (ii) second, any acceleration of vesting of any equity shall be deferred with the Company for all purposes and may be relied upon by the Companytranche that would vest last (without any such acceleration) first deferred. For purposes of making the calculations required by this Section 126, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code, and other applicable legal authority. The Employee Company and Executive shall provide furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 126. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 126. (c) If notwithstanding any reduction described in this Section 6, the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of the Covered Payments, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination a portion of such amounts equal to the “Repayment Amount.” The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net after-tax proceeds with respect to any payment of the Covered Payments (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on the Covered Payments) shall be maximized. The Repayment Amount with respect to the payment of Covered Payments shall be zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the payment of the Covered Payments being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise Tax. Notwithstanding any other provision of this Section 6, if (i) there is a reduction in the payment of Covered Payments as described in this Section 6, (ii) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s net after-tax proceeds (calculated as if the Covered Payments had not previously been reduced), and (iii) Executive pays the Excise Tax, then the Company shall pay to Executive those Covered Payments which were reduced pursuant to this Section 6 contemporaneously or as soon as administratively possible after Executive pays the Excise Tax so that Executive’s net after-tax proceeds with respect to the payment of Covered Payments are maximized.

Limitation on Parachute Payments. (a) In the event that the payments or other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s benefits under this Agreement shall be either (ax) delivered in full, or (by) delivered to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock awards. (b) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 12 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 127.17, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 127.17. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 127.17.

Limitation on Parachute Payments. (a) In the event that the payments or other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s benefits under this Agreement shall be either (a) delivered in full, or (b) delivered to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Employee’s stock awards. (b) Unless the Company and Employee otherwise agree in writing, any determination required under this Section 12 13 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 1213, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 1213. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 1213.

Limitation on Parachute Payments. (a) In the event that the payments or payment and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code, Code and (ii) but for this Section 11 (b), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and benefits under this Agreement shall will be either either: (ai) delivered in full, or or (bii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or and benefits constituting “parachute payments” is necessary pursuant so that benefits are delivered to the foregoing provisiona lesser extent, reduction shall will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of stock equity awards; , and (iv) reduction of employee benefits. If Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not Deferred Payments and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock equity awards. (b) Unless the Company and Employee otherwise agree in writing, any . Any determination required under this Section 12 shall 22(b) will be made in writing by the Company’s independent public accountants engaged by the Company for general audit purposes immediately prior to the Change in Control (the “Accountants”), whose good faith determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyCompany is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or if such firm otherwise cannot perform the calculations, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. For purposes of making the calculations required by this Section 1222(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Employee shall provide Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12Section. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12section.

Limitation on Parachute Payments. (a) In the event that the payments or payment and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “"parachute payments” " within the meaning of Section 280G(b)(2) 280G of the Code, Code and (ii) but for this Section 11 (b), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s Executive's payments and benefits under this Agreement shall will be either either: (ai) delivered in full, or or (bii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or and benefits constituting “"parachute payments” " is necessary pursuant so that benefits are delivered to the foregoing provisiona lesser extent, reduction shall will occur in the following order: : (i) reduction of cash payments; (ii) cancellation of awards granted "contingent on a change in ownership or control" (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of stock equity awards; , and (iv) reduction of employee benefits. If Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not Deferred Payments and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of Employee’s stock Executive's equity awards. (b) Unless the Company and Employee otherwise agree in writing, any . Any determination required under this Section 12 shall 22(b) will be made in writing by the Company’s 's independent public accountants engaged by the Company for general audit purposes immediately prior to the Change in Control (the “"Accountants”"), whose good faith determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyCompany is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or if such firm otherwise cannot perform the calculations, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. For purposes of making the calculations required by this Section 1222(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Employee shall provide Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12Section. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12section.

Limitation on Parachute Payments. (a) In the event that the payments or other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s benefits under this Agreement shall be either (ax) delivered in full, or (by) delivered to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction of cash payments; reduction of employee benefits, and cancellation of accelerated vesting of stock stock-based compensation and awards; and reduction of employee benefits. If acceleration of vesting of stock award stock-based compensation and awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock awards. (b) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 12 7.16 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee Executive and the Company (absent manifest error) for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 127.16, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 127.16. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 127.16.

Limitation on Parachute Payments. (a) In the event that the payments or other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s benefits under this Agreement shall be either (ax) delivered in full, or (by) delivered to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock awards. (b) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 12 7.16 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 127.16, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 127.16. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 127.16.

Limitation on Parachute Payments. (a) In the event that the payments or severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code, Code and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and benefits under this Agreement shall will be either either (a) delivered in full, or or (b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or and benefits constituting “parachute payments” is necessary pursuant so that benefits are delivered to the foregoing provisiona lesser extent, reduction shall will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of stock equity awards; , and (iv) reduction of employee benefits. If Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not Deferred Payments and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock equity awards. (b) Unless the Company and Employee otherwise agree in writing, any . Any determination required under this Section 12 shall 4 will be made in writing by the Company’s independent public accountants engaged by the Company for general audit purposes immediately prior to the Change in Control (the “Accountants”), whose good faith determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyCompany is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or if such firm otherwise cannot perform the calculations, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. For purposes of making the calculations required by this Section 124, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Employee shall provide Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12Section. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 124.

Limitation on Parachute Payments. (a) In To the extent the Executive is an U.S. resident taxpayer, in the event that the payments or severance and other benefits provided for in this Agreement or otherwise payable to Employee the Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code, Code and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employeethe Executive’s payments and benefits under this Agreement shall will be either either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999 of the Code, results in the receipt by Employee the Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or and benefits constituting “parachute payments” is necessary pursuant so that benefits are delivered to the foregoing provisiona lesser extent, reduction shall will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Section 280G of the Code), (iii) cancellation of accelerated vesting of stock equity awards; , and (iv) reduction of employee benefits. If Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not “nonqualified deferred compensation” (as defined under Section 409A of the Code) and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of Employeethe Executive’s stock equity awards. (b) Unless the Company and Employee otherwise agree in writing, any . Any determination required under this Section 12 shall 4 will be made in writing by the Company’s independent public accountants engaged by the Company for general audit purposes immediately prior to the Change in Control (the “Accountants”), whose good faith determination shall will be conclusive and binding upon Employee the Executive and the Company for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyCompany is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or if such firm otherwise cannot perform the calculations, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. For purposes of making the calculations required by this Section 124, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Employee shall provide Company and the Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12Section. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 124.

Limitation on Parachute Payments. (a) In If, in the event that opinion of tax counsel selected by HDI and acceptable to Executive, the Severance Payment plus all other payments or benefits which constitute “parachute payments” within the meaning of Internal Revenue Code Section 280G(b)(2) exceeds the amount that is deductible by HDI by reason of Section 280G, and in the opinion of such tax counsel, the Severance Payment (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits provided for in this Agreement or otherwise payable to Employee (i) which constitute “parachute payments” within the meaning of Section 280G(b)(2) are not reasonable compensation for services actually rendered or to be rendered, within the meaning of Section 280G(b)(4), the Severance Payment shall be reduced by the excess of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s benefits under this Agreement shall be either (a) delivered in full, or (b) delivered to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting aggregate “parachute payments” that would be paid to or for 7 the Executive without any portion of such “parachute payments” not being deductible by reason of Code Section 280G. The value of any non-cash benefit or any deferred cash payments shall be determined by HDI in accordance with the principles of Code Sections 280G(d)(3) and (4). If it is necessary established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the foregoing provisiongood faith of Executive and HDI in applying the terms of this subsection, reduction the aggregate “parachute payments” paid to or for Executive’s benefit are in an amount that would result in any portion of such “parachute payments” not being deductible by HDI or its Affiliates by reason of Code Section 280G, then Executive shall occur in have an obligation to pay HDI upon demand an amount equal to the following order: reduction sum of cash (A) the excess of the aggregate “parachute payments; cancellation ” paid to or for the Executive’s benefit over the aggregate “parachute payments” that would have been paid to or for the Executive’s benefit without any portion of accelerated vesting such “parachute payments” not being deductible by reason of stock awardsCode Section 280G; and reduction (B) interest on the amount set forth in clause (A) of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled this sentence at the applicable Federal rate (as defined in the reverse order of Code Section 1274(d)) from the date of grant Executive’s receipt of Employee’s stock awardssuch excess until the date of such payment. (b) Unless the Company and Employee otherwise agree in writing, any determination required under this Section 12 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 12, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12.

Limitation on Parachute Payments. (a) In the event that the payments or other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s benefits under this Agreement shall be either (ax) delivered in full, or (by) delivered to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock awards. (b) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 12 8.16 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 128.16, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 128.16. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 128.16.

Limitation on Parachute Payments. (a) In Notwithstanding any provision to the event that contrary set forth in this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or other benefits provided or to be provided by the Company or its affiliates to Executive or for in Executive’s benefit pursuant to the terms of this Agreement or otherwise payable to Employee (i“Covered Payments”) constitute parachute payments (“parachute payments” Parachute Payments”) within the meaning of Section 280G(b)(2) 280G of the CodeCode and would, and (ii) would but for this Section 3, be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then Employee’s benefits under this Agreement the Covered Payments shall be payable either (ai) delivered in full, full or (bii) delivered reduced to such lesser the minimum extent which would result in necessary to ensure that no portion of such benefits being the Covered Payments is subject to the Excise Tax, whichever of the foregoing amounts, (i) or (ii) results in Executive’s receipt on an after-tax basis of the greatest amount of benefits after taking into account the applicable federal, state state, local and local income foreign income, employment and excise taxes and (including the Excise Tax, results in the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Employee’s stock awards). (b) Unless The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, the Company reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and Employee otherwise agree in writingwhere two economically equivalent amounts are subject to reduction but payable at different times, any such amounts shall be reduced on a pro rata basis but not below zero. (c) Any determination required under this Section 12 3(c) shall be made in writing in good faith by an accounting firm selected by the Company’s independent public accountants , which is reasonably acceptable to Executive and whose consent shall not be unreasonably withheld (the “Accountants”), whose determination which shall be conclusive and binding upon Employee provide detailed supporting calculations to the Company and the Company for all purposes and may be relied upon Executive as required by the CompanyCompany or Executive. For purposes of making the calculations required by this Section 12, The Company and Executive shall provide the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 123(c). The Company shall bear be responsible for all costs fees and expenses of the Accountants. (d) It is possible that after the determinations and selections made pursuant to this Section 3 Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 3 (“Overpayment”) or less than the amount provided under this Section 3 (“Underpayment”). (i) In the event that: (A) the Accountants may reasonably incur in connection with determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then Executive shall pay any calculations contemplated such Overpayment to the Company. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by this Section 12the Company to or for the benefit of Executive.

Limitation on Parachute Payments. (a) In the event that the payments or payment and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code, Code and (ii) but for this Section 11(b), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and benefits under this Agreement shall will be either either: (ai) delivered in full, or or (bii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results result in the receipt by Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or and benefits constituting “parachute payments” is necessary pursuant so that benefits are delivered to the foregoing provisiona lesser extent, reduction shall will occur in the following order: ; (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of stock equity awards; , and (iv) reduction of employee benefits. If Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not Deferred Payments and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of Employee’s stock equity awards. (b) Unless the Company and Employee otherwise agree in writing, any . Any determination required under this Section 12 shall 18(b) will be made in writing by the Company’s independent public accountants engaged by the Company for general audit purposes immediately prior to the Change in Control (the “Accountants”), whose good faith determination shall will be conclusive and binding upon Employee and the Company for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyCompany is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, of if such firm otherwise cannot perform the calculations, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. For purposes of making the calculations required by this Section 1218(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall provide will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12Section. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12section.

Limitation on Parachute Payments. (a) In the event that the payments or other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s benefits under this Agreement shall be either (ax) delivered in full, or (by) delivered to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction of cash payments; reduction of employee benefits, and cancellation of accelerated vesting of stock stock-based compensation and awards; and reduction of employee benefits. If acceleration of vesting of stock award stock-based compensation and awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock awards. (b) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 12 7.15 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee Executive and the Company (absent manifest error) for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 127.15, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 127.15. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 127.15.

Limitation on Parachute Payments. (a) In the event that the payments or payment and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code, Code and (ii) but for this Section 11(b), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and benefits under this Agreement shall will be either either: (ai) delivered in full, or or (bii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or and benefits constituting “parachute payments” is necessary pursuant so that benefits are delivered to the foregoing provisiona lesser extent, reduction shall will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of stock equity awards; , and (iv) reduction of employee benefits. If Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not Deferred Payments and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock equity awards. (b) Unless the Company and Employee otherwise agree in writing, any . Any determination required under this Section 12 shall 24(b) will be made in writing by the Company’s independent public accountants engaged by the Company for general audit purposes immediately prior to the Change in Control (the “Accountants”), whose good faith determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyCompany is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or if such firm otherwise cannot perform the calculations, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. For purposes of making the calculations required by this Section 1224(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Employee shall provide Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12Section. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12section.

Limitation on Parachute Payments. (a) In the event that the payments or other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s benefits under this Agreement shall be either (a) delivered in full, or (b) delivered to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of EmployeeExecutive’s stock awards. (b) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 12 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 127.17, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 127.17. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 127.17.

Limitation on Parachute Payments. (a) In the event that the payments or payment and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “"parachute payments” " within the meaning of Section 280G(b)(2) 280G of the Code, Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s Executive's payments and benefits under this Agreement shall will be either either: (ai) delivered in full, or or (bii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or and benefits constituting “"parachute payments” " is necessary pursuant so that benefits are delivered to the foregoing provisiona lesser extent, reduction shall will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted "contingent on a change in ownership or control" (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of stock equity awards; , and (iv) reduction of employee benefits. If Within any such category of payments and benefits (that is, (i), (ii), (iii) or (iv)), a reduction shall occur first with respect to amounts that are not Deferred Payments and then with respect to amounts that are. In the event that acceleration of vesting of stock equity award compensation is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant of Employee’s stock Executive's equity awards. (b) Unless the Company and Employee otherwise agree in writing, any . Any determination required under this Section 12 shall will be made in writing by the Company’s independent public accountants engaged by the Company for general audit purposes immediately prior to the Change in Control (the “"Accountants”"), whose good faith determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes and may be relied upon purposes. If the independent registered public accounting firm so engaged by the CompanyCompany is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or if such firm otherwise cannot perform the calculations, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. For purposes of making the calculations required by this Section 12Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Employee shall provide Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12Section. The Company shall will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12section.

Limitation on Parachute Payments. (a) In If, in the event that opinion of tax counsel selected by HDI and acceptable to Executive, the Severance Payment plus all other payments or other benefits provided for in this Agreement or otherwise payable to Employee (i) which constitute “"parachute payments” " within the meaning of Internal Revenue Code Section 280G(b)(2) exceeds the amount that is deductible by HDI by reason of Section 280G, and in the opinion of such tax counsel, the Severance Payment (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) are not reasonable compensation for services actually rendered or to be rendered, within the meaning of Section 280G(b)(4), the Severance Payment shall be reduced by the excess of the Code, aggregate "parachute payments" that would be paid to or for the Executive without any portion of such "parachute payments" not being deductible by reason of Code Section 280G. The value of any non-cash benefit or any deferred cash payments shall be determined by HDI in accordance with the principles of Code Sections 280G(d)(3) and (ii) would be subject 4). If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the excise tax imposed by Section 4999 good faith of Executive and HDI in applying the Code (terms of this subsection, the “Excise Tax”), then Employee’s benefits under this Agreement shall be either (a) delivered aggregate "parachute payments" paid to or for Executive's benefit are in full, or (b) delivered to such lesser extent which an amount that would result in no any portion of such benefits "parachute payments" not being subject deductible by HDI or its Affiliates by reason of Code Section 280G, then Executive shall have an obligation to pay HDI upon demand an amount equal to the Excise Tax, whichever sum of (A) the excess of the foregoing amounts, taking into account aggregate "parachute payments" paid to or for the applicable federal, state and local income taxes and Executive's benefit over the Excise Tax, results in aggregate "parachute payments" that would have been paid to or for the receipt by Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some Executive's benefit without any portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in payments or benefits constituting “"parachute payments” is necessary pursuant to the foregoing provision, reduction shall occur in the following order: reduction " not being deductible by reason of cash payments; cancellation of accelerated vesting of stock awardsCode Section 280G; and reduction (B) interest on the amount set forth in clause (A) of employee benefits. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled this sentence at the applicable Federal rate (as defined in the reverse order of Code Section 1274(d)) from the date of grant Executive's receipt of Employee’s stock awardssuch excess until the date of such payment. (b) Unless the Company and Employee otherwise agree in writing, any determination required under this Section 12 shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 12, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Employee shall provide to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 12. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 12.