Common use of Limitation on Payments and Benefits Clause in Contracts

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company by the Company’s independent accountant. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then non-cash benefits shall be reduced, as determined by the Company.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any no amount or benefit to shall be paid or provided under this Agreement to an extent or in a manner that would be result in payments or benefits (or other compensation) not being fully deductible by the Company or an “Excess Parachute Payment,” within the meaning Affiliate for federal income tax purposes because of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary any successor provision thereto (but in no event to less than zero) so or that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits Executive being subject to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to by Section 4999 of the Code, or any tax imposed by any comparable successor provision of state law, and any applicable federal, state and local income and employment taxesthereto). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant would not be so deductible (or whether the Executive would be subject to the preceding sentence such excise tax) shall be made at the expense of the Company Company, if requested by either the Executive or the Company, by a firm of independent accountants or a law firm selected by the Company’s independent accountant. The fact that Company and reasonably acceptable to the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required would constitute a “parachute payment,” as defined in Section 280G of the Code, the Executive shall be entitled to designate the payments and/or benefits to be reduced pursuant to this or modified so that the Company or an Affiliate is not denied any federal income tax deductions for any such parachute payment because of Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments 280G of the Code (or so that qualify as Excess Parachute Payments payable the Executive is not subject to the Executive, then non-cash benefits excise tax imposed by Section 4999 of the Code). The Company shall be reduced, as determined provide the Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any no amount or benefit to shall be paid or provided under this Agreement to an extent or in a manner that would be result in payments or benefits (or other compensation) not being fully deductible by the Company or an “Excess Parachute Payment,” within the meaning Affiliate for federal income tax purposes because of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary any successor provision thereto (but in no event to less than zero) so or that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits Executive being subject to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to by Section 4999 of the Code, or any tax imposed by any comparable successor provision of state law, and any applicable federal, state and local income and employment taxesthereto). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant would not be so deductible (or whether the Executive would be subject to the preceding sentence such excise tax) shall be made at the expense of the Company Company, if requested by either the Executive or the Company, by a firm of independent accountants or a law firm selected by the Company’s independent accountant. The fact that Company and reasonably acceptable to the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required would constitute a "parachute payment," as defined in Section 280G of the Code, the Executive shall be entitled to designate the payments and/or benefits to be reduced pursuant to this or modified so that the Company or an Affiliate is not denied any federal income tax deductions for any such parachute payment because of Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments 280G of the Code (or so that qualify as Excess Parachute Payments payable the Executive is not subject to the Executive, then non-cash benefits excise tax imposed by Section 4999 of the Code). The Company shall be reduced, as determined provide the Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountant. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3, cash Severance Benefits severance payable hereunder shall be reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then non-cash benefits shall be reduced, as determined by the Company.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s 's independent accountantaccountants. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 5 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 5. The Company shall provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the last sentence of this Section 3 to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that no such reduction shall be made if it is not thereby possible to eliminate all Excess Parachute Payments under this Agreement; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 3 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.33, cash Severance Benefits payable hereunder shall be reduced firstthe Company will reduce the Executive’s payment and/or benefits, then other cash payments that qualify as Excess Parachute Payments payable to the Executiveextent required, then nonin the following order: (i) the lump sum payment provided under Section 2(d); (ii) the lump sum payment provided under Section 2(e)(1); (iii) the lump sum payment related to Health Care Benefits provided under Section 2(f); and (iv) the accelerated vesting of equity-cash benefits shall be reduced, as determined by the Companybased awards described in Section 2(c).

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants in effect prior to the Change in Control. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 5 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder shall the Executive will be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 5. The Company will provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, Payment except that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise that is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s independent accountantaccountants. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 13 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.313, cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 13. The Company shall provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any ----------------------------------- provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, Payment except that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise that is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s 's independent accountantaccountants. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 12 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.312, cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 12. The Company shall provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding Subject to Section 3(a) of this Agreement, notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the last sentence of this Section 2 to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that no such reduction shall be made if it is not thereby possible to eliminate all Excess Parachute Payments under this Agreement; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 2 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.32, cash Severance Benefits payable hereunder shall be reduced firstthe Company will reduce Executive’s payment and/or benefits, then other cash payments that qualify as Excess Parachute Payments payable to the Executiveextent required, then nonin the following order: (i) the lump sum payment provided under Section 1(d); (ii) the lump sum payment provided under Section 1(e)(1); (iii) the lump sum payment related to Health Care Benefits provided under Section 1(f); and (iv) the accelerated vesting of equity-cash benefits shall be reduced, as determined by the Companybased awards described in Section 1(c).

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement (or any other agreement to which the Employee is a party, including any stock option agreement) would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by either the Employee or the Company, by a firm of independent accountants or a law firm selected by the Company’s independent accountantCompany and reasonably acceptable to the Employee. The fact that the Executive’s Employee's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 8 shall not of itself limit or otherwise affect any other rights of the Executive Employee other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.38, cash Severance Benefits payable hereunder the Employee shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 8. The Company shall provide the Executive, then non-cash benefits shall be reduced, as determined Employee with all information reasonably requested by the CompanyEmployee to permit the Employee to make such designation. In the event that the Employee fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement (taking into account all other amounts and benefits to be paid or provided to or for the benefit of the Executive by the Company or any affiliate thereof under this Agreement or otherwise as though all such other amounts and benefits had already been so paid or provided) would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the United States Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of United States state law, and any applicable United States federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s 's independent accountantaccountants. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 5 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments in order to give effect to this Section 5. The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that qualify as Excess Parachute Payments payable the Executive fails to make such designation within 5 business days of the Executive, then non-cash benefits shall be reducedBonus Date or the Termination Date, as determined by applicable, the CompanyCompany may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company by the Company’s 's independent accountant. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then non-cash benefits shall be reduced, as determined by the Company.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any no amount or benefit to shall be paid or provided under this Agreement to an extent or in a manner that would be result in payments or benefits (or other compensation) not being fully deductible by the Company or an “Excess Parachute Payment,” within the meaning Affiliate for federal income tax purposes because of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary any successor provision thereto (but in no event to less than zero) so or that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits Executive being subject to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to by Section 4999 of the Code, or any tax imposed by any comparable successor provision of state law, and any applicable federal, state and local income and employment taxesthereto). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant would not be so deductible (or whether the Executive would be subject to the preceding sentence such excise tax) shall be made at the expense of the Company Company, if requested by either the Executive or the Company, by a firm of independent accountants or a law firm selected by the Company’s independent accountantCompany and reasonably acceptable to the Executive. The fact Company and the Executive shall cooperate to submit for approval by the shareholders of the Company, AMH II or another applicable Affiliate, in accordance with Section 280G(b)(5) of the Code, payments and benefits that the Executive’s right to payments or benefits may be reduced by reason made or provided to the Executive that may otherwise be considered “parachute payments,” as defined in Section 280G(b)(2) of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this AgreementCode. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required would constitute a “parachute payment,” as defined in Section 280G of the Code, the Executive shall be entitled to designate the payments and/or benefits (beginning with cash payments) to be reduced pursuant to this or modified so that the Company or an Affiliate is not denied any federal income tax deductions for any such parachute payment because of Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments 280G of the Code (or so that qualify as Excess Parachute Payments payable the Executive is not subject to the Executive, then non-cash benefits excise tax imposed by Section 4999 of the Code). The Company shall be reduced, as determined provide the Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within ten (10) business days after the date his employment with the Company or an Affiliate terminates, the Company may effect such reduction in any manner it deems appropriate (beginning with cash payments).

Limitation on Payments and Benefits. Notwithstanding Subject to Section 4(a) of this Agreement, notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the last sentence of this Section 3 to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that no such reduction shall be made if it is not thereby possible to eliminate all Excess Parachute Payments under this Agreement; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 3 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.33, cash Severance Benefits payable hereunder shall be reduced firstthe Company will reduce Executive’s payment and/or benefits, then other cash payments that qualify as Excess Parachute Payments payable to the Executiveextent required, then nonin the following order: (i) the lump sum payment provided under Section 2(d); (ii) the lump sum payment provided under Section 2(e)(1); (iii) the lump sum payment related to Health Care Benefits provided under Section 2(f); and (iv) the accelerated vesting of equity-cash benefits shall be reduced, as determined by the Companybased awards described in Section 2(c).

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any bonus, stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be providedprovided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s 's independent accountantaccountants. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 paragraph 6(f) shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3paragraph 6(f), cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this paragraph 6(f). The Company shall provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Date of Termination, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if in the event that any amount or benefit to be paid or provided under this Agreement would be an or otherwise to the Employee constitutes a “Excess Parachute Payment,parachute payment” within the meaning of Section 280G of the Code, and but for the application of this sentenceprovision, then the payments and benefits would be subject to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to by Section 4999 of the Code, any then the totality of those amounts shall be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax imposed by any comparable provision under Section 4999 of state lawthe Code, and any whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999 of the Code (and any equivalent state or local excise taxes). Whether requested , results in the receipt by the Executive or Employee on an after-tax basis, of the Company, the determination greatest amount of whether any reduction in such payments and benefits, notwithstanding that all or benefits some portion of such amount may be taxable under Section 4999 of the Code. Unless the Company and the Employee otherwise agree, any determination required under this provision shall be made in writing by a firm of independent public accountants or a law firm selected by the Company and reasonably acceptable to the Employee (the “Accountants”), whose determination shall be provided conclusive and binding upon the Employee and the Company for all purposes. The Company and the Employee agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this provision. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this provision. Any reduction of any amount required by this provision shall occur in the following order: (1) reduction of cash payments to the Employee under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense otherwise; (2) reduction of the Company by the Company’s independent accountant. The fact that the Executive’s right to payments or benefits may be reduced by reason vesting acceleration of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided equity awards under this Agreement or otherwise is required otherwise; and (3) reduction of other benefits paid or provided to the Employee. If two or more equity awards are granted on the same date, each award will be reduced pursuant to this Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then nonon a pro rata basis (dollar-cash benefits shall be reduced, as determined by the Companyfor-dollar).

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits All determinations to be provided made under this Agreement or otherwise is required pursuant to the preceding sentence Section 9.3 shall be made at by an independent accounting firm, consulting firm or other independent service provider selected by the expense Company immediately prior to a “change in ownership or control” within the meaning of Section 280G of the Code (the “Firm”), which shall provide its determinations and any supporting calculations both to the Company and the Executive within ten (10) days of the “change in ownership or control.” Any such determination by the Firm shall be binding upon the Company and the Executive. All of the fees and expenses of the Firm in performing the determinations referred to in this Section 9.3 shall be borne solely by the Company’s independent accountant. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is Any reduction required to be reduced pursuant to by this Section 9.39.3 shall apply in reverse chronological order, cash Severance Benefits payable hereunder shall be with amounts due farthest in the future being reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then non-cash benefits shall be reduced, as determined by the Company.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s 's independent accountantaccountants. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 5 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 5. The Company shall provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate. 6.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if if, after taking into account all amounts or benefits otherwise to be paid or payable, any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be so paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment payments and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state state, and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s 's independent accountantaccountants. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 6 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.36, cash Severance Benefits payable hereunder shall the Executive will be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 6. The Company will provide the Executive, then non-cash benefits shall be reduced, as determined Executive all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s 's independent accountantaccountants. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 15 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.315, cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments in order to give effect to this Section 15. The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that qualify as Excess Parachute Payments payable the Executive fails to make such designation within 10 business days of the date the Executive's employment with the Company terminates, then non-cash benefits shall be reduced, as determined by the CompanyCompany may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company by the Company’s independent accountant. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then non-cash benefits shall be reduced, as determined by the Company.. In the event that Section 280G/4999 of the Code is ever implicated in connection with any benefits or payments to the Executive, to the extent that satisfaction of the shareholder approval requirements of Section 280G would result in payments to the Executive that would otherwise be subject to excise tax under Section 280G/4999 to be exempt from such tax, then (i) the Executive shall have the right to request that such payments be subject to such shareholder approval, and (ii) upon such request, the Company agrees to use its best efforts to cause such vote to be conducted as a “slate vote” in accordance with and satisfying the requirements of Section 280G.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, Change of Control Agreement (Xxxxxxxxx)7 determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants in effect prior to the Change in Control. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 5 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder shall the Executive will be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 5. The Company will provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the last sentence of this Section 3 to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that no such reduction shall be made if it is not thereby possible to eliminate all Excess Parachute Payments under this Agreement; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be he provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants, which determination shall take into account a reasonable compensation analysis of the value of services provided or to be provided by Executive, including Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable to Executive (including, without limitation, those contemplated by Sections 7, 8 and 9 of this Agreement). The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 3 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.33, cash Severance Benefits payable hereunder shall be reduced firstthe Company will reduce Executive’s payment and/or benefits, then other cash payments that qualify as Excess Parachute Payments payable to the Executiveextent required, then nonin the following order: (i) the lump sum payment provided under Section 2(d); (ii) the lump sum payment provided under Section 2(e)(1); (iii) the lump sum payment related to Health Care Benefits provided under Section 2(f); and (iv) the accelerated vesting of equity-cash benefits shall be reduced, as determined by the Companybased awards described in Section 2(c).

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive Employee or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants in effect prior to the Change of Control. The fact that the ExecutiveEmployee’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 5 will not of itself limit or otherwise affect any other rights of the Executive Employee other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder the payments or benefits (that constitute “parachute payments” within the meaning of Section 280G of the Code) with the latest payment date shall be reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then non-cash benefits shall be reduced, as determined by the Company.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; : provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company by the Company’s 's independent accountant. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then non-cash benefits shall be reduced, as determined by the Company.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; providedPROVIDED, howeverHOWEVER, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive Employee or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s 's independent accountantaccountants, as determined immediately prior to the Change of Control. The fact that the Executive’s Employee's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall paragraph 6 will not of itself limit or otherwise affect any other rights of the Executive Employee other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3paragraph 6, cash Severance Benefits payable hereunder shall the Employee will be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments in order to give effect to this paragraph 6. The Company will provide the Employee with all information reasonably requested by the Employee to permit the Employee to make such designation. In the event that qualify as Excess Parachute Payments payable the Employee fails to make such designation within 10 business days prior to the Executivedate of termination of Employee's employment, then non-cash benefits shall be reduced, as determined by the CompanyCompany may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive Employee or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s 's independent accountantaccountants, as determined immediately prior to the Change of Control. The fact that the Executive’s Employee's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall paragraph 7 will not of itself limit or otherwise affect any other rights of the Executive Employee other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3paragraph 7, cash Severance Benefits payable hereunder shall the Employee will be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments in order to give effect to this paragraph 7. The Company will provide the Employee with all information reasonably requested by the Employee to permit the Employee to make such designation. In the event that qualify as Excess Parachute Payments payable the Employee fails to make such designation within 10 business days prior to the Executivedate of termination of Employee's employment, then non-cash benefits shall be reduced, as determined by the CompanyCompany may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement (or any other agreement to which the Executive is a party, including any stock option agreement) would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by either the Executive or the Company, by a firm of independent accountants or a law firm selected by the Company’s independent accountantCompany and reasonably acceptable to the Executive. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 8 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.38, cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 8. The Company shall provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountant. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3, cash Severance Benefits severance payable hereunder shall be reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then non-cash benefits shall be reduced, as determined by the Company.

Limitation on Payments and Benefits. Notwithstanding any provision of anything in this Agreement to the contrary, if any amount of the payments or benefit benefits to be paid made or provided under in connection with this Agreement would be Agreement, together with any other payments, benefits or awards which the Recipient has the right to receive from the Company or any Affiliate constitute an “Excess Parachute Payment,excess parachute payment” within the meaning of (as defined in Section 280G 280G(b) of the Code), but for the application of this sentencesuch payments, then the payments and benefits or awards to be paid made or provided under in connection with this Agreement shall Agreement, or any other agreement between the Recipient and the Company or its Affiliates, may be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; providedeliminated, however, that the foregoing reduction shall be made only if and modified or waived to the extent that necessary to prevent all, or any portion, of such reduction would result in an increase in the aggregate payment payments, benefits or awards from becoming “excess parachute payments” and benefits therefore subject to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to under Section 4999 of the Code. The Recipient will have the sole right and discretion to determine whether the payments, benefits or awards to be made or provided in connection with this Agreement, or any tax imposed by any comparable provision of state law, other agreement between the Recipient and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, should be reduced, and whether or not such other agreement with the Company or an Affiliate expressly addresses the potential application of Section 280G or Section 4999 of the Code (including, without limitation, that “payments” under such agreement be reduced). The Recipient will also have the right to designate the particular payments, benefits or awards that are to be reduced, eliminated, modified or waived; provided, that no such adjustment will be made if it results in additional expense to the Company in excess of expenses the Company would have experienced if no adjustment had been made. The determination of as to whether any reduction such decrease in such the payments or benefits is necessary must be made in good faith by legal counsel or a certified public accountant selected by the Recipient and reasonably acceptable to the Company, and such determination will be provided conclusive and binding upon the Recipient and the Company. The Company will pay or reimburse the Recipient on demand for the reasonable fees, costs and expenses of the counsel or accountant selected to make the determinations under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company by the Company’s independent accountant. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then non-cash benefits shall be reduced, as determined by the CompanySection.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; providedPROVIDED, howeverHOWEVER, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive Employee or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s 's independent accountantaccountants, as determined immediately prior to the Change of Control. The fact that the Executive’s Employee's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall paragraph 7 will not of itself limit or otherwise affect any other rights of the Executive Employee other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3paragraph 7, cash Severance Benefits payable hereunder shall the Employee will be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments in order to give effect to this paragraph 7. The Company will provide the Employee with all information reasonably requested by the Employee to permit the Employee to make such designation. In the event that qualify as Excess Parachute Payments payable the Employee fails to make such designation within 10 business days prior to the Executivedate of termination of Employee's employment, then non-cash benefits shall be reduced, as determined by the CompanyCompany may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this ----------------------------------- Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, Payment except that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise that is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s 's independent accountantaccountants. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 12 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.312, cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 12. The Company shall provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the last sentence of this Section 5 to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that no such reduction shall be made if it is not thereby possible to eliminate all Excess Parachute Payments under this Agreement; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 5 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder shall be reduced firstthe Company will reduce the Executive’s payment and/or benefits, then other cash payments that qualify as Excess Parachute Payments payable to the Executiveextent required, then nonin the following order: (i) the lump sum payment provided under Paragraph 1 of Annex A; (ii) the lump sum payment provided under Paragraph 2 of Annex A; (iii) the continuation of Welfare Benefits provided under Paragraph 3 of Annex A; and (iv) the accelerated vesting of equity-cash benefits shall be reduced, as determined by the Companybased awards described in Section 4.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, Payment except that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise that is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s independent accountantaccountants. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 8C shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.38C, cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 8C. The Company shall provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the last sentence of this Section 3 to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that no such reduction shall be made if it is not thereby possible to eliminate all Excess Parachute Payments under this Agreement; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be he provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants, which determination shall take into account a reasonable compensation analysis of the value of services provided or to be provided by Executive, including Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable to Executive (including, without limitation, those contemplated by Sections 6, 7 and 8 of this Agreement). The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 3 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.33, cash Severance Benefits payable hereunder shall be reduced firstthe Company will reduce Executive’s payment and/or benefits, then other cash payments that qualify as Excess Parachute Payments payable to the Executiveextent required, then nonin the following order: (i) the lump sum payment provided under Section 2(d); (ii) the lump sum payment provided under Section 2(e)(1); (iii) the lump sum payment related to Health Care Benefits provided under Section 2(f); and (iv) the accelerated vesting of equity-cash benefits shall be reduced, as determined by the Companybased awards described in Section 2(c).

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, Payment except that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise that is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Employee or the Company, by the Company’s independent accountantaccountants. The fact that the ExecutiveEmployee’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 8C shall not of itself limit or otherwise affect any other rights of the Executive Employee other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.38C, cash Severance Benefits payable hereunder the Employee shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 8C. The Company shall provide the Executive, then non-cash benefits shall be reduced, as determined Employee with all information reasonably requested by the CompanyEmployee to permit the Employee to make such designation. In the event that the Employee fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, Change of Control Agreement (July 2012) – Xxxxx LaForge7 determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants in effect prior to the Change in Control. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 5 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder shall the Executive will be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 5. The Company will provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, Change of Control Agreement (July 2012) – Xxxxx Bates7 determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants in effect prior to the Change in Control. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 5 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder shall the Executive will be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 5. The Company will provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s 's independent accountantaccountants. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 14 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.314, cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments in order to give effect to this Section 14. The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that qualify as Excess Parachute Payments payable the Executive fails to make such designation within 10 business days of the date the Executive's employment with the Company terminates, then non-cash benefits shall be reduced, as determined by the CompanyCompany may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s 's independent accountantaccountants in effect prior to the Change in Control. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 5 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder shall the Executive will be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 5. The Company will provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section Bygland Change of Control Agreement (July 2013)7 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the CompanyBank, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company Bank by the CompanyBank’s independent accountantaccountants in effect prior to the Change in Control. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 5 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder shall the Executive will be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 5. The Bank will provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Bank may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall will be made at the expense of the Company by the Company’s independent accountantaccountants or benefits consultant. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall 5 will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.35, cash Severance Benefits payable hereunder shall the Executive will be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments that qualify as Excess Parachute Payments payable in order to give effect to this Section 5. The Company will provide the Executive, then non-cash benefits shall be reduced, as determined Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Termination Date, the Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “"Excess Parachute Payment,” " within the meaning of Section 280G of 7 8 the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company Company, if requested by the Executive or the Company, by the Company’s 's independent accountantaccountants. The fact that the Executive’s 's right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 14 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.314, cash Severance Benefits payable hereunder the Executive shall be entitled to designate the payments and/or benefits to be so reduced first, then other cash payments in order to give effect to this Section 14. The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that qualify as Excess Parachute Payments payable the Executive fails to make such designation within 10 business days of the date the Executive's employment with the Company terminates, then non-cash benefits shall be reduced, as determined by the CompanyCompany may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any no amount or benefit to shall be paid or provided under this Agreement or otherwise to an extent or in a manner that would be result in payments or benefits (or other compensation) not being fully deductible by the Company or an “Excess Parachute Payment,” within the meaning Affiliate for federal income tax purposes because of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary any successor provision thereto (but in no event to less than zero) so or that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits Executive being subject to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to by Section 4999 of the Code, or any tax imposed by any comparable successor provision of state law, and any applicable federal, state and local income and employment taxesthereto). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant would not be so deductible (or whether Executive would be subject to the preceding sentence such excise tax) shall be made at the expense of the Company Company, if requested by either Executive or the Company, by a firm of independent accountants or a law firm selected by the Company’s independent accountantCompany and reasonably acceptable to Executive. The fact Company and Executive shall cooperate to submit for approval by the shareholders of the Company, Parent or another applicable Affiliate, in accordance with Section 280G(b)(5) of the Code, payments and benefits that the Executive’s right to payments or benefits may be reduced by reason made or provided to Executive that may otherwise be considered “parachute payments,” as defined in Section 280G(b)(2) of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this AgreementCode. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required would constitute a “parachute payment,” as defined in Section 280G of the Code, the Company shall designate the payments and/or benefits (beginning with cash payments) to be reduced pursuant to this or modified so that the Company or an Affiliate is not denied any federal income tax deductions for any such parachute payment because of Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments 280G of the Code (or so that qualify as Excess Parachute Payments payable Executive is not subject to the Executive, then non-cash benefits shall be reduced, as determined excise tax imposed by Section 4999 of the CompanyCode).

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any no amount or benefit to shall be paid or provided under this Agreement to an extent or in a manner that would be result in payments or benefits (or other compensation) not being fully deductible by the Company or an “Excess Parachute Payment,” within the meaning Affiliate for federal income tax purposes because of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary any successor provision thereto (but in no event to less than zero) so or that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits Executive being subject to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to by Section 4999 of the Code, or any tax imposed by any comparable successor provision of state law, and any applicable federal, state and local income and employment taxesthereto). Whether requested by the Executive or the Company, the The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant would not be so deductible (or whether the Executive would be subject to the preceding sentence such excise tax) shall be made at the expense of the Company Company, if requested by either the Executive or the Company, by a firm of independent accountants or a law firm selected by the Company’s independent accountant. The fact that Company and reasonably acceptable to the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required would constitute a “parachute payment,” as defined in Section 280G of the Code, the Executive shall be entitled to designate the payments and/or benefits (beginning with cash payments) to be reduced pursuant to this or modified so that the Company or an Affiliate is not denied any federal income tax deductions for any such parachute payment because of Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments 280G of the Code (or so that qualify as Excess Parachute Payments payable the Executive is not subject to the Executive, then non-cash benefits excise tax imposed by Section 4999 of the Code). The Company shall be reduced, as determined provide the Executive with all information reasonably requested by the CompanyExecutive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the date her employment with the Company or an Affiliate terminates, the Company may effect such reduction in any manner it deems appropriate (beginning with cash payments).

Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Code, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence shall be made at the expense of the Company by an independent accounting firm engaged by the Company’s independent accountantCompany for this purpose. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 9.3 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 9.3, cash Severance Benefits payable hereunder shall be reduced first, then other cash payments that qualify as Excess Parachute Payments payable to the Executive, then non-cash benefits shall be reduced, as determined by the Company.