Common use of Limitations on Payments Clause in Contracts

Limitations on Payments. (i) If it is determined that any payment, benefit or distribution provided for in this Agreement or otherwise (for the purposes of this Section 6(b), each, a “Payment” and collectively, the “Payments”) from the Company to or for the benefit of the Executive (x) constitutes a “parachute payment” within the meaning of Section 280G of the Code and (y) but for this subsection (b), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), such Payments shall be either: (A) delivered in full, or (B) delivered to such lesser extent that would result in no portion of the Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of Payments, notwithstanding that all or some portion of the Payments may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 6(b)(i) shall be made in writing in good faith by an independent accounting firm selected by the Company, whose determinations shall be binding upon the Company and the Executive (the “Accountants”), in good faith consultation with the Executive. (ii) In the event a reduction in the Payments is required hereunder, the Company shall promptly give the Executive notice to that effect and the Executive may then determine, in the Executive’s sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as, after such election, none of the Payments are subject to the Excise Tax), and shall advise the Company in writing of the Executive’s election within ten (10) days of the Executive’s receipt of the Company’s notice. If no such election is made by the Executive within such period, the Company may determine which and how much of the Payments shall be eliminated or reduced (as long as, after such determination, none of the Payments are subject to the Excise Tax) and shall notify the Executive promptly of such determination. (iii) For purposes of making the determinations and calculations required by this Section 6(b), the Accountants: (A) shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Control within the meaning of Section 280G(b)(2) of the Code and the regulations thereunder, including without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, whether set forth in this Agreement or otherwise (a “Noncompete Covenant”), and the Company shall cooperate in good faith in connection with any such valuations and reasonable compensation positions. Without limiting the generality of the foregoing, for purposes of this provision, the Company agrees to allocate as consideration for any Noncompete Covenant the maximum amount of compensation and benefits payable under this Agreement reasonably allocable thereto so as to avoid, to the extent possible, subjecting any Payments to tax under Section 4999 of the Code; and (B) may make reasonable assumptions and approximations concerning the application of taxes and may rely on reasonable good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6(b). (iv) If the Payments are reduced to avoid the Excise Tax pursuant to Section 6(b)(i) hereof and notwithstanding such reduction, the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of Payments from the Company, then the Executive shall be obligated to pay to the Company (the 7

Limitations on Payments. (i) If it is determined that Notwithstanding any payment, benefit or distribution provided for in this Agreement or otherwise (for the purposes other provision of this Section 6(b)Agreement, eachif any portion of any payment under this Agreement, a “Payment” and collectively, the “Payments”) from or under any other agreement with or plan of the Company to or for its affiliates (in the benefit of the Executive (x) constitutes a “parachute payment” within the meaning of Section 280G of the Code and (y) but for this subsection (baggregate "Total Payments"), would constitute an "excess parachute payment," then the Total Payments to be made to the Employee shall be reduced such that the value of the aggregate Total Payments that the Employee is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Employee may receive without becoming subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”), such Payments shall be either: (A"Code") delivered in full, or (B) delivered to such lesser extent that would result in no portion which the Company may pay without loss of the Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of Payments, notwithstanding that all or some portion of the Payments may be taxable deduction under Section 4999 280G(a) of the Code. Unless For purposes of this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meaning assigned to them in Section 280G of the Code, and such "parachute payments" shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code. Within fifteen (15) days following the Date of Termination or notice by the Company to the Employee of its belief that there is a payment or benefit due the Employee which will result in an excess parachute payment as defined in Section 280G of the Code, the Employee and Executive otherwise agree in writingthe Company, any determination required under this Section 6(b)(iat the Company's expense, shall obtain the opinion (which need not be unqualified) shall be made in writing in good faith by an independent accounting firm of nationally recognized tax counsel selected by the Company's independent auditors and acceptable to the Employee in his sole discretion (which may be regular outside counsel to the Company), whose determinations which opinion sets forth (i) the amount of the Base Period Income, (ii) the amount and present value of Total Payments and (iii) the amount and present value of any excess parachute payments determined without regard to the limitations of this paragraph. As used in this Agreement, the term "Base Period Income" means an amount equal to the Employee's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be binding upon determined by the Company's independent auditors in accordance with the principles of Sections 280(G)(d)(3) and (4) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive Employee. If such opinion determines that there would be an excess parachute payment, any payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Employee in writing delivered to the Company within five (5) days of his receipt of such opinion or, if the “Accountants”)Employee fails to so notify the 5 Company, in good faith consultation with the Executive. (ii) In the event a reduction in the Payments is required hereunder, then as the Company shall promptly give the Executive notice to that effect and the Executive may then reasonably determine, so that under the bases of calculations set forth in the Executive’s sole discretion, which and how much of the Payments shall such opinion there will be eliminated or reduced (as long as, after such election, none of the Payments are subject to the Excise Tax), and shall advise the Company in writing of the Executive’s election within ten (10) days of the Executive’s receipt of the Company’s noticeexcess parachute payment. If no such election is made by legal counsel so requests in connection with the Executive within such period, the Company may determine which and how much of the Payments shall be eliminated or reduced (as long as, after such determination, none of the Payments are subject to the Excise Tax) and shall notify the Executive promptly of such determination. (iii) For purposes of making the determinations and calculations opinion required by this Section 6(b)paragraph, the Accountants: (A) shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Control within the meaning of Section 280G(b)(2) of the Code and the regulations thereunder, including without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, whether set forth in this Agreement or otherwise (a “Noncompete Covenant”), Employee and the Company shall cooperate in good faith in connection with any such valuations obtain at the Company's expense, and reasonable compensation positions. Without limiting the generality of the foregoing, for purposes of this provision, the Company agrees to allocate as consideration for any Noncompete Covenant the maximum amount of compensation and benefits payable under this Agreement reasonably allocable thereto so as to avoid, to the extent possible, subjecting any Payments to tax under Section 4999 of the Code; and (B) may make reasonable assumptions and approximations concerning the application of taxes and legal counsel may rely on reasonable good faith interpretations concerning in providing the application opinion, the advice of a firm of recognized executive compensation to be received by the Employee. If the provisions of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6(b). (iv) If the Payments Code are reduced to avoid the Excise Tax pursuant to Section 6(b)(i) hereof and notwithstanding such reduction, the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of Payments from the Companyrepealed without succession, then the Executive this paragraph shall be obligated to pay to the Company (the 7of no further force or effect.

Limitations on Payments. (i) If it is determined that Notwithstanding any payment, benefit or distribution provided for in this Agreement or otherwise (for the purposes other provision of this Section 6(b)Agreement, eachif any portion of any payment under this Agreement, a “Payment” and collectively, the “Payments”) from or under any other agreement with or plan of the Company to or for its affiliates (in the benefit of the Executive (x) constitutes a “parachute payment” within the meaning of Section 280G of the Code and (y) but for this subsection (baggregate "Total Payments"), would constitute an "excess parachute payment," then the Total Payments to be made to the Employee shall be reduced such that the value of the aggregate Total Payments that the Employee is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Employee may receive without becoming subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”), such Payments shall be either: (A"Code") delivered in full, or (B) delivered to such lesser extent that would result in no portion which the Company may pay without loss of the Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of Payments, notwithstanding that all or some portion of the Payments may be taxable deduction under Section 4999 280G(a) of the Code. Unless For purposes of this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meaning assigned to them in Section 280G of the Code, and such "parachute payments" shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b) (2) of the Code. Within fifteen (15) days following the Date of Termination or notice by the Company to the Employee of its belief that there is a payment or benefit due the Employee which will result in an excess parachute payment as defined in Section 280G of the Code, the Employee and Executive otherwise agree in writingthe Company, any determination required under this Section 6(b)(iat the Company's expense, shall obtain the opinion (which need not be unqualified) shall be made in writing in good faith by an independent accounting firm of nationally recognized tax counsel selected by the Company, whose determinations shall 's independent auditors and acceptable to the Employee in his sole discretion (which may be binding upon regular outside counsel to the Company and the Executive (the “Accountants”Company), in good faith consultation with which opinion sets forth (i) the Executive. amount of the Base Period Income, (ii) In the event a reduction in the Payments is required hereunder, the Company shall promptly give the Executive notice to that effect and the Executive may then determine, in the Executive’s sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as, after such election, none of the Payments are subject to the Excise Tax), and shall advise the Company in writing of the Executive’s election within ten (10) days of the Executive’s receipt of the Company’s notice. If no such election is made by the Executive within such period, the Company may determine which and how much of the Payments shall be eliminated or reduced (as long as, after such determination, none of the Payments are subject to the Excise Tax) and shall notify the Executive promptly of such determination. (iii) For purposes of making the determinations and calculations required by this Section 6(b), the Accountants: (A) shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Control within the meaning of Section 280G(b)(2) of the Code and the regulations thereunder, including without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, whether set forth in this Agreement or otherwise (a “Noncompete Covenant”), and the Company shall cooperate in good faith in connection with any such valuations and reasonable compensation positions. Without limiting the generality of the foregoing, for purposes of this provision, the Company agrees to allocate as consideration for any Noncompete Covenant the maximum amount of compensation and benefits payable under this Agreement reasonably allocable thereto so as to avoid, to the extent possible, subjecting any Payments to tax under Section 4999 of the Code; and (B) may make reasonable assumptions and approximations concerning the application of taxes and may rely on reasonable good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6(b). (iv) If the Payments are reduced to avoid the Excise Tax pursuant to Section 6(b)(i) hereof and notwithstanding such reduction, the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of Payments from the Company, then the Executive shall be obligated to pay to the Company (the 7and

Limitations on Payments. (ia) If it is determined that any payment, benefit or distribution provided for Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined as set forth herein that any payment or otherwise (for distribution by the purposes of this Section 6(b), each, a “Payment” and collectively, Corporation or the “Payments”) from the Company Bank to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the Executive terms of this Agreement or otherwise (x) constitutes a “Payment”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Code Code, and that it would be economically advantageous to Executive to reduce the Payment to avoid or reduce the taxation of excess parachute payments under Section 4999 of the Code, the aggregate present value of amounts payable or distributable to or for the benefit of Executive pursuant to this Agreement (ysuch payments or distributions pursuant to this Agreement are hereinafter referred to as “Agreement Payments”) shall be reduced (but for this subsection (b), would not below zero) to the Reduced Amount. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), such Payments shall be either: (A) delivered in full, or (B) delivered to such lesser extent that would result in no portion of the Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of Payments, notwithstanding that all or some portion of the Payments may be taxable taxation under Section 4999 of the Code. Unless For purposes of this Section 17, present value shall be determined in accordance with Section 280G(d)(4) of the Company and Executive otherwise agree Code. (b) All determinations to be made under this Section 17 shall be made, in writing, by the Corporation’s independent certified public accountant immediately prior to the Change of Control (the “Accounting Firm”), which firm shall provide its determinations and any determination required under this Section 6(b)(i) shall be made supporting calculations in writing in good faith by an independent accounting firm selected to both the Corporation and you within 10 days of the date of termination. Any such determination by the Company, whose determinations Accounting Firm shall be binding upon the Company Corporation and the Executive (the “Accountants”), you. You shall in good faith consultation with the Executive. (ii) In the event a reduction in the Payments is required hereunder, the Company shall promptly give the Executive notice to that effect and the Executive may then determine, in the Executive’s your sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as, after such election, none of the Payments are subject to the Excise Tax), and shall advise the Company in writing of the Executive’s election within ten (10) days of the Executive’s receipt of the Company’s notice. If no such election is made by the Executive within such period, the Company may discretion determine which and how much of the Agreement Payments shall be eliminated or reduced consistent with the requirements of this Section 17, which determination shall be made by delivery of written notice to the Corporation within 10 days of your receipt of the determination of the Accounting Firm. Within five (as long as, 5) days after such your timely determination, none the Corporation shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of you, such amounts as are then due to you under this Agreement. In the event you do not make such timely determination then within 15 days after Corporation’s receipt of the Payments are subject to determination of the Excise Tax) and shall notify the Executive promptly of such determination. (iii) For purposes of making the determinations and calculations required by this Section 6(b)Accounting Firm, the Accountants: Corporation, in its sole discretion, may pay (A) shall take into account the value of any reasonable compensation for services or cause to be rendered by paid) or distribute (or cause to be distributed) to or for the Executive before or after the Change in Control within the meaning benefit of Section 280G(b)(2) you such portion of the Code and Agreement Payments as it may deem appropriate, but no less than the regulations thereunder, including without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, whether set forth in this Agreement or otherwise (a “Noncompete Covenant”), and the Company shall cooperate in good faith in connection with any such valuations and reasonable compensation positions. Without limiting the generality of the foregoing, for purposes of this provision, the Company agrees to allocate as consideration for any Noncompete Covenant the maximum amount of compensation and benefits payable under this Agreement reasonably allocable thereto so as to avoid, to the extent possible, subjecting any Payments to tax under Section 4999 of the Code; and (B) may make reasonable assumptions and approximations concerning the application of taxes and may rely on reasonable good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6(b). (iv) If the Payments are reduced to avoid the Excise Tax pursuant to Section 6(b)(i) hereof and notwithstanding such reduction, the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of Payments from the Company, then the Executive shall be obligated to pay to the Company (the 7Reduced Amount.

Limitations on Payments. (i) If it is determined that Notwithstanding any payment, benefit or distribution provided for in this Agreement or otherwise (for the purposes other provision of this Section 6(b)Agreement, eachif any portion of any payment under this Agreement, a “Payment” and collectively, the “Payments”) from or under any other agreement with or plan of the Company to or for its affiliates (in the benefit of the Executive (x) constitutes a “parachute payment” within the meaning of Section 280G of the Code and (y) but for this subsection (baggregate "Total Payments"), would constitute an "excess parachute payment," then the Total Payments to be made to the Executive shall be reduced such that the value of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”), such Payments shall be either: (A"Code") delivered in full, or (B) delivered to such lesser extent that would result in no portion which the Company may pay without loss of the Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of Payments, notwithstanding that all or some portion of the Payments may be taxable deduction under Section 4999 280G(a) of the Code. Unless For purposes of this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meaning assigned to them in Section 280G of the Code, and such "parachute payments" shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b) (2) of the Code. Within fifteen (15) days following the Date of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code, the Executive and Executive otherwise agree in writingthe Company, any determination required under this Section 6(b)(iat the Company's expense, shall obtain the opinion (which need not be unqualified) shall be made in writing in good faith by an independent accounting firm of nationally recognized tax counsel selected by the Company's independent auditors and acceptable to the Executive in his sole discretion (which may be regular outside counsel to the Company), whose determinations which opinion sets forth (i) the amount of the Base Period Income, (ii) the amount and present value of Total Payments and (iii) the amount and present value of any excess parachute payments determined without regard to the limitations of this paragraph. As used in this Agreement, the term "Base Period Income" means an amount equal to the Executive's "annualized includible compensation for the base period" as defined in Section 280G(d) (1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be binding upon determined by the Company's independent auditors in accordance with the principles of Sections 28OG(d) (3) and (4) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive (the “Accountants”), in good faith consultation with the Executive. If such opinion determines that there would be an excess parachute payment, any payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Company within five (ii5) In days of his receipt of such opinion or, if the event a reduction in Executive fails to so notify the Payments is required hereunderCompany, then as the Company shall promptly give the Executive notice to that effect and the Executive may then reasonably determine, so that under the bases of calculations set forth in the Executive’s sole discretion, which and how much of the Payments shall such opinion there will be eliminated or reduced (as long as, after such election, none of the Payments are subject to the Excise Tax), and shall advise the Company in writing of the Executive’s election within ten (10) days of the Executive’s receipt of the Company’s noticeexcess parachute payment. If no such election is made by legal counsel so requests in connection with the Executive within such period, the Company may determine which and how much of the Payments shall be eliminated or reduced (as long as, after such determination, none of the Payments are subject to the Excise Tax) and shall notify the Executive promptly of such determination. (iii) For purposes of making the determinations and calculations opinion required by this Section 6(b)paragraph, the Accountants: (A) shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Control within the meaning of Section 280G(b)(2) of the Code and the regulations thereunder, including without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, whether set forth in this Agreement or otherwise (a “Noncompete Covenant”), and the Company shall cooperate in good faith in connection with any such valuations obtain at the Company's expense, and reasonable compensation positions. Without limiting the generality of the foregoing, for purposes of this provision, the Company agrees to allocate as consideration for any Noncompete Covenant the maximum amount of compensation and benefits payable under this Agreement reasonably allocable thereto so as to avoid, to the extent possible, subjecting any Payments to tax under Section 4999 of the Code; and (B) may make reasonable assumptions and approximations concerning the application of taxes and legal counsel may rely on reasonable good faith interpretations concerning in providing the application opinion, the advice of a firm of recognized executive compensation to be received by the Executive. If the provisions of Sections 280G 28OG and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6(b). (iv) If the Payments Code are reduced to avoid the Excise Tax pursuant to Section 6(b)(i) hereof and notwithstanding such reduction, the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of Payments from the Companyrepealed without succession, then the Executive this paragraph shall be obligated to pay to the Company (the 7of no further force or effect.

Limitations on Payments. (ia) If In the event that it is shall be determined that any payment, benefit payment or distribution provided for in this Agreement or otherwise (for the purposes of this Section 6(b), each, a “Payment” and collectively, the “Payments”) from the Company to or for the benefit of the Executive (x) constitutes a “parachute payment” within the meaning of Section 280G of the Code and (y) any Participant under this Plan or under any other Company plan, contract or agreement would, but for the effect of this subsection (b)Section, would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then, in the event that the after-tax value of all Payments to a Participant (such Payments shall after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be either: less than the after-tax value to the Participant of the Safe Harbor Amount, (Aa) delivered in full, or (B) delivered to such lesser extent that would result in no portion the cash portions of the Payments being subject payable to the Excise TaxParticipant under this Plan shall be reduced, whichever in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Participant, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, cash portions of the greatest amount of Payments, notwithstanding that payable under this Plan, to zero would not be sufficient to reduce the Parachute Value of all or some portion Payments to the Safe Harbor Amount, then any cash portions of the Payments may be taxable payable to the Participant under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 6(b)(i) other plans shall be made in writing in good faith by an independent accounting firm selected by the Company, whose determinations shall be binding upon the Company and the Executive (the “Accountants”), in good faith consultation with the Executive. (ii) In the event a reduction in the Payments is required hereunder, the Company shall promptly give the Executive notice to that effect and the Executive may then determinereduced, in the Executive’s sole discretionorder in which they are due to be paid, which until the Parachute Value of all Payments paid to the Participant, in the aggregate, equals the Safe Harbor Amount, and how much (c) if the reduction of all cash portions of the Payments, payable pursuant to this Plan and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be eliminated or reduced (as long asreduced, after such electionin the order in which they are due to be paid, none until the Parachute Value of the all Payments are subject paid to the Excise Tax)Participant, and in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall advise be determined by the Company in writing of the Executive’s election within ten (10) days of the Executive’s receipt of and the Company’s notice. If no such election is made by the Executive within such period, the Company may determine which and how much of the Payments shall be eliminated or reduced (as long as, after such determination, none of the Payments are subject to the Excise Tax) and shall notify the Executive promptly of such determination. (iii) For purposes of making the determinations and calculations required by this Section 6(b), the Accountants: (A) shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Control within the meaning of Section 280G(b)(2) of the Code and the regulations thereunder, including without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, whether set forth in this Agreement or otherwise (a “Noncompete Covenant”), and the Company shall cooperate in good faith in connection with any such valuations and reasonable compensation positions. Without limiting the generality of the foregoing, for purposes of this provision, the Company agrees to allocate as consideration for any Noncompete Covenant the maximum amount of compensation and benefits payable under this Agreement reasonably allocable thereto so as to avoid, to the extent possible, subjecting any Payments to tax under Section 4999 of the Code; and (B) may make reasonable assumptions and approximations concerning the application of taxes and may rely on reasonable good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6(b). (iv) If the Payments are reduced to avoid the Excise Tax pursuant to Section 6(b)(i) hereof and notwithstanding such reduction, the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of Payments from the Company, then the Executive shall be obligated to pay to the Company (the 7outside auditors.