Common use of Reduction of Payments Clause in Contracts

Reduction of Payments. Any reduction under Subsection (b) above shall be applied first to Payments that constitute “deferred compensation” (within the meaning of Section 409A of the Code and the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm under this Section 3 shall be binding upon the Company and the Employee and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the Employee.

Reduction of Payments. Any reduction under Subsection (b) above shall be applied first Notwithstanding anything to Payments that constitute the contrary in this Agreement, if Employee is a “deferred compensationdisqualified individual” (within the meaning of as defined in Section 409A 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the regulations thereunder). If there is more than one such Paymentpayments and benefits provided for in this Agreement, then such reduction shall be applied on together with any other payments and benefits which Employee has the right to receive from the Company or any of its affiliates, would constitute a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s sole discretion, which and how much of the Payments shall be eliminated or reduced “parachute payment” (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company defined in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, a present value shall be determined in accordance with Section 280G(d)(4280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from the Company and its affiliates will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code. All determinations The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to the extent of any such reduction in the amount of the payments and benefits provided hereunder shall be made by the Accounting Firm under Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 3 5.8 shall be binding upon require the Company and the Employee and shall to be made within 10 business days responsible for, or have any liability or obligation with respect to, Employee’s excise tax liabilities under Section 4999 of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunderCode, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the Employeeif any.

Reduction of Payments. Any reduction under Subsection (b) above shall be applied first If the Auditors determine that any Payments --------------------- made pursuant to Payments that constitute “deferred compensation” (within this Agreement would exceed the meaning Limitation Amount because of Section 409A section 280G of the Code Code, which calculation shall occur at the time of the Change in Control, then the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the regulations thereunder). If there is more than one such Payment, Executive may then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s Executive's sole discretion, which and how much of the such Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments such Payments, as so eliminated or reduced, equals the Reduced Amount) and shall advise the Company in writing of the Employee’s Executive's election within 10 business days of receipt of notice. If no such election is made by the Employee Executive within such 10-day period, then the Company may elect decide which and how much of the such Payments shall be eliminated or reduced (as long as after such election decision the aggregate present value of the Payments such Payments, as so eliminated or reduced, equals the Reduced Amount) and shall notify the Employee Executive promptly of such electiondecision. For purposes of this Section 34, a present value shall be determined in accordance with Section section 280G(d)(4) of the Code. All determinations made by the Accounting Firm Auditors under this Section 3 4 shall be binding upon the Company and the Employee Executive and shall be made within 10 business 60 days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee Executive such amounts as are then due to the Employee Executive under this Agreement and shall promptly pay or transfer to or for the benefit of the Employee Executive in the future such amounts as become due to the EmployeeExecutive under this Agreement.

Reduction of Payments. Any reduction under Subsection (b) above shall be applied first If the Auditors determine that any Payments made --------------------- pursuant to Payments that constitute “deferred compensation” (within this Agreement would exceed the meaning Limitation Amount because of Section 409A section 280G of the Code Code, which calculation shall occur at the time of the Change in Control, then the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the regulations thereunder). If there is more than one such Payment, Executive may then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s Executive's sole discretion, which and how much of the such Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments such Payments, as so eliminated or reduced, equals the Reduced Amount) and shall advise the Company in writing of the Employee’s Executive's election within 10 business days of receipt of notice. If no such election is made by the Employee Executive within such 10-day period, then the Company may elect decide which and how much of the such Payments shall be eliminated or reduced (as long as after such election decision the aggregate present value of the Payments such Payments, as so eliminated or reduced, equals the Reduced Amount) and shall notify the Employee Executive promptly of such electiondecision. For purposes of this Section 34, a present value shall be determined in accordance with Section section 280G(d)(4) of the Code. All determinations made by the Accounting Firm Auditors under this Section 3 4 shall be binding upon the Company and the Employee Executive and shall be made within 10 business 60 days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee Executive such amounts as are then due to the Employee Executive under this Agreement and shall promptly pay or transfer to or for the benefit of the Employee Executive in the future such amounts as become due to the EmployeeExecutive under this Agreement.

Reduction of Payments. Any reduction (a) In the event that any amount or benefit paid, distributed or otherwise provided to the Executive by the Company, whether pursuant to this Agreement or otherwise (collectively, the "Covered Payments"), is or becomes subject to the tax (the "Excise Tax") imposed under Subsection Section 4999 of the Internal Revenue Code, as amended (the "Code"), or any similar tax that may hereafter be imposed, the Company shall have the right to reduce the amount of the Severance Payments payable to the Executive under this Agreement such that the present value of all Covered Payments (as determined under the Code and the applicable regulations) does not constitute a "parachute payment" for purposes of Section 280G of the Code. (b) above For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax: (i) such Covered Payments will be treated as "parachute payments" within the meaning of Section 280G of the Code, but no "parachute payments" in excess of the "base amount" shall be applied first treated as subject to the Excise Tax, unless, and except to the extent that, in the opinion of the Company's independent certified public accountants or tax counsel selected by such accountants (the "Accountants"), there is no substantial authority that such Covered Payments that (in whole or in part) either do not constitute “deferred compensation” "parachute payments" or represent reasonable compensation for services actually rendered (within the meaning of Section 409A 280G(b)(4) of the Code and Code) in excess of the regulations thereunder). If there is more than one such Payment"base amount", then such reduction and (ii) the value of any non-cash benefits or any deferred payment or benefit shall be applied on determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) The Company shall apply the provisions of this Section 8(c) in a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, reasonable manner and in good faith in accordance with then prevailing practices in the Employee’s sole discretion, which interpretation and how much application of Section 280G of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such electionCode. For purposes of applying the provisions of this Section 3, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm under this Section 3 shall be binding upon the Company and the Employee and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder8, the Company shall pay be entitled to rely on the written advice of legal counsel or transfer a nationally recognized accounting firm as to whether one or for the benefit more Covered Payments constitute "parachute payments" under Section 280G of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the EmployeeCode.

Reduction of Payments. Any reduction If the Auditors determine that the Reduced Amount results in the greatest amount of Agreement Payments to the Employee under Subsection (ba) above above, then the Company shall be applied first promptly give the Employee notice to Payments that constitute “deferred compensation” (within the meaning of Section 409A effect and a copy of the Code detailed calculation thereof and of the regulations thereunder). If there is more than one such PaymentReduced Amount, then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, and the Employee may elect, in the Employee’s sole discretion, then elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm Auditors under this Section 3 shall be binding upon the Company and the Employee and shall be made within 10 business 60 days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts Agreement Payments as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts Agreement Payments as become due to the Employee.

Reduction of Payments. Any reduction under Subsection (ba) above In the event that it shall be applied first determined that (X) any amount or benefit paid, distributed or otherwise provided to Payments that constitute the Executive by the Company Group, whether pursuant to this Agreement or otherwise (collectively, the “deferred compensation” (within Covered Payments”), would be subject to the meaning of excise tax imposed by Section 409A 4999 of the Code (the “Excise Tax”), and (Y) the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject of the amounts payable to the foregoing rulesExecutive under this Agreement or with respect to stock options and equity awards to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”) would provide the Executive with a greater after-tax amount than if such amounts were not reduced, then, subject to the further limitations set forth herein, the Employee may elect, in the Employee’s sole discretion, which and how much of the Covered Payments shall be eliminated or reduced (as long as after such election but not below zero) to the aggregate present Safe Harbor Cap. The reductions, if applicable, shall be made to the extent necessary in the following order: (i) the acceleration of vesting of stock options and other equity awards with an exercise price that exceeds the then fair market value of the Payments equals stock subject to the Reduced Amountaward; (ii) the Severance Payments; and shall advise (iii) the Company in writing acceleration of the Employee’s election within 10 business days vesting of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which all other stock options and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such electionequity awards. For purposes of reducing the Covered Payments to the Safe Harbor Cap, only amounts payable under this Agreement and with respect to stock options and equity awards (and no other Covered Payments) shall be reduced. If the reduction would not result in a greater after-tax result to the Executive, no amounts payable under this Agreement or with respect to stock options and equity awards shall be reduced pursuant to this provision. (b) A nationally recognized firm of independent accountants, selected by the Company after consultation with the Executive, shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. Such accounting firm shall apply the provisions of this Section 3, 8 in a present value shall be determined reasonable manner and in good faith in accordance with then prevailing practices in the interpretation and application of Section 280G(d)(4) 4999 of the Code. All For purposes of applying the provisions of this Section 8, the Company shall be entitled to rely on the written advice of legal counsel or such accounting firm as to whether one or more Covered Payments constitute “parachute payments” under Section 4999 of the Code. (c) The accounting firm engaged to make the determinations made hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Executive within 30 calendar days after the date that such accounting firm has been engaged to make such determinations or such other time as requested by the Accounting Firm under this Section 3 Company or the Executive. If payments are reduced to the Safe Harbor Cap or the accounting firm determines that no Excise Tax is payable by the Executive without a reduction in Covered Payments, it shall furnish the Company and the Executive with an opinion to such effect, that the Executive is not required to report any Excise Tax on the Executive’s federal income tax return, and that the failure to report the Excise Tax, if any, on the Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty. Any good faith determinations of the accounting firm made hereunder shall be binding final, binding, and conclusive upon the Company and the Employee and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the EmployeeExecutive.

Reduction of Payments. Any reduction under Subsection (b) above shall If the Auditors determine that any Payment would be applied first to Payments that constitute “deferred compensation” (within nondeductible by the meaning of Section 409A Corporation or any member of the Code and AirTouch Group because of section 280G of the regulations thereunder). If there is more than one such PaymentCode, then such reduction the Corporation, within five business days after being notified by the Auditors, shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount. The Employee may then elect, in the Employee’s 's sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company Corporation in writing of the Employee’s this election within 10 business thirty (30) days of receipt of notice. If no such election is made by the Employee within such 10-thirty (30) day period, then the Company Corporation may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 314, a present value values shall be determined in accordance with Section section 280G(d)(4) of the Code. All determinations made by the Accounting Firm Auditors under this Section 3 14 shall be binding upon the Company Corporation and the Employee and shall be made within 10 business 60 days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the Employeeemployment termination.

Reduction of Payments. Any reduction under Subsection (ba) above Notwithstanding anything in this Agreement to the contrary, in the event that it shall be applied first determined that any payment, distribution, or other action by the Company to Payments that constitute or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of the Agreement or otherwise (a “deferred compensationPayment”)) would result in an “excess parachute payment” (within the meaning of Section 409A 280G(b)(i) of the Code (or any other similar provision hereafter enacted), and the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, a present value shall be determined in accordance with Section 280G(d)(4) of the CodeCode (or any other similar provision) of the Payments, net of all taxes imposed on Employee (the “Net After-Tax Amount”), that Employee would receive would be greater if the Payments (or some of them) were reduced than if such Payments were not reduced, then the Payments shall be reduced by an amount (the “Reduction Amount”) so that the Net After-Tax Amount after such reduction is greatest. For purposes of determining the Net After-Tax Amount, Employee shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Payment is required to be made, net of the maximum reduction in federal income taxes which would be allowable as a deduction of such state and local taxes. (b) Subject to the provisions of this Section 5(b), all determinations required to be made under this Section 5, including the Net After-Tax Amount, the Reduction Amount, and the Payment that is to be reduced pursuant to Section 5(a), and the assumptions to be utilized in arriving at such determinations, shall be made by a nationally recognized firm of independent public accountants selected by the Employee and approved by the Company, which approval shall not be unreasonably withheld or delayed (the “Accounting Firm”). The Accounting Firm shall be instructed to provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, or such earlier time as is requested by the Company. The Accounting Firm’s decision as to which Payments are to be reduced shall be made (i) only from Payments that the Accounting Firm determines reasonably may be characterized as “parachute payments” under Section 280G of the Code (or any other similar provision hereafter enacted); (ii) from Payments that are required to be made in cash before any non-cash payments are reduced; (iii) with respect to any amounts that are not subject to Section 409A before any amounts that are subject to Section 409A; and (iv) in reverse chronological order, to the extent that any Payments subject to reduction are made over time (e.g., in installments). In no event, however, shall any Payments be reduced if and to the extent such reduction would cause a violation of Section 409A or other applicable law. All determinations made fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm under this Section 3 shall be binding upon the Company and the Employee and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the Employee.

Reduction of Payments. Any reduction under Subsection (b) above shall If the Accounting Firm determines that any Payment would be applied first to Payments that constitute “deferred compensation” (within nondeductible by the meaning Company because of Section 409A 280G of the Code and the regulations thereunder). If there is more than one such PaymentCode, then such reduction the Company shall be applied on promptly give the Employee notice to that effect and a pro rata basis to all such Payments. Subject to copy of the foregoing rulesdetailed calculation thereof and of the Reduced Amount, and the Employee may then elect, in the Employee’s sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 32, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm under this Section 3 2 shall be binding upon the Company and the Employee and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the Employee.

Reduction of Payments. Any reduction under Subsection (b) above shall be applied first to Payments that constitute “deferred compensation” (within the meaning of Section 409A of the Code and the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee Executive may elect, in the EmployeeExecutive’s sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the EmployeeExecutive’s election within 10 business days of receipt of notice. If no such election is made by the Employee Executive within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee Executive promptly of such election. For purposes of this Section 36, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm under this Section 3 6 shall be binding upon the Company and the Employee Executive and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee Executive such amounts as are then due to the Employee Executive and shall promptly pay or transfer to or for the benefit of the Employee Executive in the future such amounts as become due to the EmployeeExecutive.

Reduction of Payments. Any reduction under Subsection (b) above shall be applied first to Payments that constitute “"deferred compensation” " (within the meaning of Section 409A of the Code and the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s 's sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s 's election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm under this Section 3 shall be binding upon the Company and the Employee and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the Employee.

Reduction of Payments. Any reduction under Subsection (b) above shall If the Auditors determine that any Payment --------------------- would not be applied first to Payments that constitute “deferred compensation” (within deductible by the meaning Company because of Section 409A 280G of the Code and Code, disregarding for purposes of this test the regulations thereunder). If there is more than one such Paymenteffect of any Vesting Amount, then such reduction the Company shall be applied on promptly give the Executive both notice to that effect and a pro rata basis to all such Paymentsdetailed calculation thereof and of the Reduced Amount. Subject to the foregoing rules, the Employee The Executive may then elect, in the Employee’s his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s his election within 10 business ten days of his receipt of notice. If no such election is made by the Employee Executive within such 10ten-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee Executive promptly of such election. For purposes of this Section 37, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm Auditors under this Section 3 7 shall be binding upon the Company and the Employee Executive and shall be made within 10 business thirty (30) days of the date when a Payment becomes payable or transferableExecutive's termination of employment. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer distribute to or for the benefit of the Employee Executive such amounts as are then due to the Employee him under this Agreement and shall promptly pay or transfer to or distribute for the benefit of the Employee Executive in the future such amounts as may become due to the Employeehim under this Agreement.

Reduction of Payments. Any reduction under Subsection (b) above shall be applied first to Payments that constitute “deferred compensation” (within the meaning of Section 409A of the Code and the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 32, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm under this Section 3 2 shall be binding upon the Company and the Employee and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the Employee.

Reduction of Payments. Any reduction under Subsection (ba) above In the event that it shall be applied first determined that (X) any amount or benefit paid, distributed or otherwise provided to Payments that constitute the Executive by the Company Group, whether pursuant to this Agreement or otherwise (collectively, the “deferred compensation” (within Covered Payments”), would be subject to the meaning of excise tax imposed by Section 409A 4999 of the Code (the “Excise Tax”), and (Y) the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject of the amounts payable to the foregoing rulesExecutive under this Agreement or with respect to stock 8 options and equity awards to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”) would provide the Executive with a greater after-tax amount than if such amounts were not reduced, then, subject to the further limitations set forth herein, the Employee may elect, in the Employee’s sole discretion, which and how much of the Covered Payments shall be eliminated or reduced (as long as after such election but not below zero) to the aggregate present Safe Harbor Cap. The reductions, if applicable, shall be made to the extent necessary in the following order: (i) the acceleration of vesting of stock options and other equity awards with an exercise price that exceeds the then fair market value of the Payments equals stock subject to the Reduced Amountaward; (ii) the Severance Payments; and shall advise (iii) the Company in writing acceleration of the Employee’s election within 10 business days vesting of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which all other stock options and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such electionequity awards. For purposes of reducing the Covered Payments to the Safe Harbor Cap, only amounts payable under this Agreement and with respect to stock options and equity awards (and no other Covered Payments) shall be reduced. If the reduction would not result in a greater after-tax result to the Executive, no amounts payable under this Agreement or with respect to stock options and equity awards shall be reduced pursuant to this provision. (b) A nationally recognized firm of independent accountants, selected by the Company after consultation with the Executive, shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. Such accounting firm shall apply the provisions of this Section 3, 8 in a present value shall be determined reasonable manner and in good faith in accordance with then prevailing practices in the interpretation and application of Section 280G(d)(4) 4999 of the Code. All For purposes of applying the provisions of this Section 8, the Company shall be entitled to rely on the written advice of legal counsel or such accounting firm as to whether one or more Covered Payments constitute “parachute payments” under Section 4999 of the Code. (c) The accounting firm engaged to make the determinations made hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Executive within 30 calendar days after the date that such accounting firm has been engaged to make such determinations or such other time as requested by the Accounting Firm under this Section 3 Company or the Executive. If payments are reduced to the Safe Harbor Cap or the accounting firm determines that no Excise Tax is payable by the Executive without a reduction in Covered Payments, it shall furnish the Company and the Executive with an opinion to such effect, that the Executive is not required to report any Excise Tax on the Executive’s federal income tax return, and that the failure to report the Excise Tax, if any, on the Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty. Any good faith determinations of the accounting firm made hereunder shall be binding final, binding, and conclusive upon the Company and the Employee and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the EmployeeExecutive.

Reduction of Payments. Any reduction under Subsection (b) above shall If the Auditors determine that any Payment would be applied first to Payments that constitute “deferred compensation” (within nondeductible by the meaning Company because of Section 409A section 280G of the Code Code, then the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the regulations thereunder). If there is more than one such Payment, Participant may then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s his or her sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s his or her election within 10 business days of receipt of notice. If no such election is made by the Employee Participant within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee Participant promptly of such election. For purposes of this Section 3Article 13, a present value shall be determined in accordance with Section section 280G(d)(4) of the Code. All determinations made by the Accounting Firm Auditors under this Section 3 Article 13 shall be binding upon the Company and the Employee Participant and shall be made within 10 business 60 days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee Participant such amounts as are then due to him or her under the Employee Plan and shall promptly pay or transfer to or for the benefit of the Employee Participant in the future such amounts as become due to him or her under the EmployeePlan.

Reduction of Payments. Any reduction under Subsection (b) above shall If the Auditors determine that any Payment would be applied first to Payments that constitute “deferred compensation” (within nondeductible by the meaning Company because of Section 409A 280G of the Code Code, then the Company shall promptly give the Participant notice to that effect and a copy of the regulations thereunder)detailed calculation thereof and of the Reduced Amount. If there is more than one such Payment, then such reduction shall be applied on a pro rata basis none of the payments are subject to all such Payments. Subject to the foregoing rulesSection 409A, the Employee Participant may then elect, in the Employee’s his or her sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s his or her election within 10 business days of receipt of notice. If no such election is made by the Employee Participant within such 10-day period, then or if any Payment is subject to Section 409A, the Company may elect reduction will occur in the following order: (i) cancellation of acceleration of vesting of any equity Awards for which and how much the exercise price (if any) exceeds the then-Fair Market Value of the Payments shall underlying equity; (ii) reduction of cash payments (with such reduction being applied to the payments in the reverse order in which they would otherwise be eliminated or made (that is, later payments will be reduced before earlier payments )); and (as long as after iii) cancellation of acceleration of vesting of equity Awards not covered under (i) above; provided, however, that in the event that acceleration of vesting of equity Awards is to be canceled, such election acceleration of vesting will be canceled in the aggregate present value reverse order of the Payments equals the Reduced Amount) and shall notify the Employee promptly date of grant of such electionequity Awards (that is, later equity Awards will be canceled before earlier equity awards). If two or more equity Awards are granted on the same date, each Award will be reduced on a pro-rata basis. For purposes of this Section 3Article 16, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm Auditors under this Section 3 Article 16 shall be binding upon the Company and the Employee Participant and shall be made within 10 business 60 days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee Participant such amounts as are then due to him or her under the Employee Plan and shall promptly pay or transfer to or for the benefit of the Employee Participant in the future such amounts as become due to him or her under the EmployeePlan.

Reduction of Payments. Any reduction under Subsection (b) above shall be applied first to Payments that constitute “deferred compensation” (within the meaning of Section 409A of the Code and the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee Executive may elect, in the EmployeeExecutive’s sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the EmployeeExecutive’s election within 10 business days of receipt of notice. If no such election is made by the Employee Executive within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee Executive promptly of such election. For purposes of this Section 35, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm under this Section 3 5 shall be binding upon the Company and the Employee Executive and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee Executive such amounts as are then due to the Employee Executive and shall promptly pay or transfer to or for the benefit of the Employee Executive in the future such amounts as become due to the EmployeeExecutive.

Reduction of Payments. Any reduction under Subsection (b) above shall If the Auditors determine that any Payment would be applied first to Payments that constitute “deferred compensation” (within nondeductible by the meaning Company because of Section 409A section 280G of the Code Code, then the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the regulations thereunder). If there is more than one such Payment, Participant may then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s his or her sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s his or her election within 10 business ten (10) days of receipt of notice. If no such election is made by the Employee Participant within such 10-day ten (10)-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee Participant promptly of such election. For purposes of this Section 3Article 13, a present value shall be determined in accordance with Section section 280G(d)(4) of the Code. All determinations made by the Accounting Firm Auditors under this Section 3 Article 13 shall be binding upon the Company and the Employee Participant and shall be made within 10 business sixty (60) days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee Participant such amounts as are then due to him or her under the Employee Plan and shall promptly pay or transfer to or for the benefit of the Employee Participant in the future such amounts as become due to him or her under the EmployeePlan.

Reduction of Payments. (i) Anything in this Agreement to the contrary notwithstanding, in the event that any payment or benefit received or to be received by Executive in connection with a Change in Control or the termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Corporation, any person whose actions result in a Change in Control or any person affiliated with the Corporation or such person) (all such payments and benefits, the “Total Payments”) would not be deductible (in whole or part), by the Corporation, an affiliate or person making such payment or providing such benefit as a result of Section 280G of the Code, then the portion of the Total Payments due under this Agreement (the “Agreement Payments”) shall be reduced if, and only if, such reduction results in Executive’s receipt, on an after-tax basis, of a greater amount of the Total Payments after taking into account all applicable federal, state and local employment taxes, income taxes and the Excise Tax (all computed at the highest applicable marginal rate). Any reduction in the Agreement Payments required by this Paragraph G(i) shall first reduce the cash payments due under Subsection Paragraph A (bif necessary, to zero), and all other Agreement Payments shall thereafter be reduced (if necessary, to zero); provided, however, that Executive may elect to have noncash Agreement Payments reduced (or eliminated) above prior to any reduction of cash Agreement Payments. (ii) For purposes of this Paragraph B, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall be applied first have waived at such time and in such manner as not to Payments that constitute a “deferred compensationpayment” (within the meaning of Section 409A 280G(b) of the Code and the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject to taken into account, (ii) no portion of the foregoing rules, the Employee may electTotal Payments shall be taken into account which, in the Employee’s sole discretion, which opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made selected by the Employee accounting firm which was, immediately prior to the Change in Control, the Corporation’s independent auditor (the “Auditor”), does not constitute a “parachute payment” within such 10-day period, then the Company may elect which and how much meaning of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, a present value shall be determined in accordance with Section 280G(d)(4280G(b)(2) of the Code. All determinations made , including by reason of Section 280G(b)(4)(A) of the Code, and (iii) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm under this Section 3 shall be binding upon Auditor in accordance with the Company principles of Sections 280G(d)(3) and the Employee and shall be made within 10 business days (4) of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the EmployeeCode.

Reduction of Payments. Any reduction under Subsection (bi) above shall be applied first to Payments that constitute “deferred compensation” (within the meaning of Section 409A of the Code and the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject Anything in this Agreement to the foregoing rules, the Employee may electcontrary notwithstanding, in the Employee’s sole discretion, which and how much event it shall be determined that any payment or distribution by the Company to or for the benefit of the Payments shall Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a "Payment") would be eliminated or reduced (as long as after such election nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of the Payments equals amounts payable or distributable as severance benefits hereunder shall be reduced to the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments The "Reduced Amount" shall be eliminated or reduced (as long as after such election an amount expressed in present value which maximizes the aggregate present value of such severance benefits without causing any Payment to be nondeductible by the Payments equals Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced AmountAmount is zero and it is determined further that any Payment which is not part of the severance benefits payable hereunder would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not severance benefits under this Agreement shall also be reduced (but not below zero) and shall notify to an amount expressed in present value which maximizes the Employee promptly aggregate present value of such electionPayments without causing any payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 3paragraph 5, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made . (iii) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm under this Section 3 shall hereunder, it is possible that Payments will have been made by the Company which should not have been made ("Overpayment") or that Payments will not have been made by the Company which could have been made ("Underpayment"), in each case, consistent with the calculations required to be binding made hereunder. In the event that the Accounting Firm, based upon the Company and assertion of a deficiency by the Employee and shall be made within 10 business days of Internal Revenue Service against the date when a Payment becomes payable Executive or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or transfer distributed by the Company to or for the benefit of the Employee such amounts Executive shall be treated for all purposes as are then due a loan AB INITIO to the Employee Executive which the Executive shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; PROVIDED, HOWEVER, that no such loan shall be deemed to have been made and no amount shall be payable to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly pay or transfer paid by the Company to or for the benefit of the Employee Executive together with interest at 120% of the applicable federal rate provided for in Section 7872(f)(2) of the future such amounts as become due Code, compounded semiannually. (iv) In the event that a reduction of benefits and payments is required pursuant to this section (c), the Company shall, to the Employeeextent practicable and permitted without causing any Overpayment, permit the Executive to select which payments and benefits provided for hereunder will be paid as provided by the Company to the Executive.

Reduction of Payments. Any reduction under Subsection (b) above shall If the Auditors determine that any Payment would be applied first to Payments that constitute “deferred compensation” (within nondeductible by the meaning Company because of Section 409A section 280G of the Code Code, then the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the regulations thereunder). If there is more than one such Payment, Participant may then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s his or her sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s his or her election within 10 business days of receipt of notice. If no such election is made by the Employee Participant within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee Participant promptly of such election. For purposes of this Section 3Article 13, a present value shall be determined in accordance with Section section 280G(d)(4) of the Code. All determinations made by the Accounting Firm Auditors under this Section 3 Article 13 shall be binding upon the Company and the Employee Participant and shall be made within 10 business 60 days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee Participant such amounts as are then due to him or her under the Employee Plan and shall promptly pay or transfer to or for the benefit of the Employee Participant in the future such amounts as become due to him or her under the EmployeePlan.

Reduction of Payments. Any reduction under Subsection (b) above shall be applied first If the Auditors determine that any Payments --------------------- made pursuant to Payments that constitute “deferred compensation” (within this Agreement would exceed the meaning Limitation Amount because of Section 409A section 280G of the Code Code, which calculation shall occur at the time of the Change in Control, then the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the regulations thereunder). If there is more than one such Payment, Executive may then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s Executive's sole discretion, which and how much of the such Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments such Payments, as so eliminated or reduced, equals the Reduced Amount) and shall advise the Company in writing of the Employee’s Executive's election within 0within 10 business days of receipt of notice. If no such election is made by the Employee Executive within such 10-day period, then the Company may elect decide which and how much of the such Payments shall be eliminated or reduced (as long as after such election decision the aggregate present value of the Payments such Payments, as so eliminated or reduced, equals the Reduced Amount) and shall notify the Employee Executive promptly of such electiondecision. For purposes of this Section 34, a present value shall be determined in accordance with Section section 280G(d)(4) of the Code. All determinations made by the Accounting Firm Auditors under this Section 3 4 shall be binding upon the Company and the Employee Executive and shall be made within 10 business 60 days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee Executive such amounts as are then due to the Employee Executive under this Agreement and shall promptly pay or transfer to or for the benefit of the Employee Executive in the future such amounts as become due to the EmployeeExecutive under this Agreement.

Reduction of Payments. Any reduction under Subsection (bi) above Notwithstanding anything in the foregoing to the contrary, if the payments made to Executive following a Termination Without Cause, Change in Control or any of the other payments provided for in this Agreement, together with any other payments which Executive has the right to receive from the Bank would constitute a “parachute payment” (as defined in Section 280G of the Code) the payments pursuant to this Agreement shall be applied first reduced to Payments that constitute “deferred compensation” (within the meaning largest amount as will result in no portion of such payments being subject to the excise tax imposed by Section 409A 4999 of the Code and Code; provided, however, that the regulations thereunder). If there determination as to whether any reduction in the payments under this Agreement pursuant to this proviso is more than one such Payment, then such reduction necessary shall be applied made in good faith by the Bank’s independent auditors or if such firm is no longer providing tax services to Bank, to such other tax advisor as shall be mutually acceptable to Bank and Executive, and such determination shall be conclusive and binding on a pro rata basis to all such Payments. Subject the Bank and Executive with respect to the foregoing rules, the Employee may elect, in the Employee’s sole discretion, which and how much treatment of the Payments shall be eliminated payment for tax reporting purposes. (ii) If the Company is subject to the executive compensation limitations imposed by state or reduced (as long as after such election federal regulators at the aggregate present value of time the Payments equals the Reduced AmountExecutive receives payment(s) under sections 8(d) and/or 8(e) and shall advise any such payment(s), together with any other payments which Executive has the Company in writing of right to receive from the Employee’s election within 10 business days of receipt of notice. If no Company, exceed the limits allowed for Executive established by such election is made by the Employee within such 10-day periodstate or federal regulators, then the Company may elect which aggregate payments pursuant to this Agreement, and how much any other agreement with Executive, shall be reduced to the largest amount as will result in no portion of such payments violating the executive compensation limitations imposed by such state or federal regulators. (iii) Notwithstanding any provision existing in this Agreement or any amendment thereto, it is the intent of the Payments Bank, Company and Executive that any payment or benefit provided pursuant to this Agreement shall be eliminated or reduced (as long as after made and paid in a manner, at a time and in a form which complies with the applicable requirements of IRC Section 409A, in order to avoid any unfavorable tax consequences resulting from any such election failure to comply. Furthermore, for the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Agreement, IRC Section 3, a present value 409A shall be determined read to include any related or relevant IRS Notices (including but not limited to Notice 2007-86). (iv) In the event of any ambiguity in terms, or in the event further clarification of any term or provision is necessary, all interpretations and payouts of benefits based thereon shall be in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm under this Section 3 shall be binding upon the Company IRC 409A and the Employee and shall be made within 10 business days of the date when a Payment becomes payable any related notices or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the Employeeguidance thereon.

Reduction of Payments. Any reduction under Subsection Notwithstanding anything to the contrary in this Agreement, if Executive is a “disqualified individual” (bas defined in Code Section 280G(c)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any of its Affiliates (collectively, “Total Payments”), would constitute a “parachute payment” (as defined in Code Section 280G(b)(2)), then the payments and benefits provided for in this Agreement shall either (i) above be paid in full, or (ii) be reduced (but not below zero) so that the present value of such Total Payments will be one dollar ($1.00) less than three times Executive’s “base amount” (as defined in Code Section 280G(b)(3)) and so that no portion of such amounts and benefits received by Executive shall be applied first subject to Payments that constitute “deferred compensation” (within the meaning of excise tax imposed by Code Section 409A 4999, whichever results in the receipt by Executive on an after-tax basis of the greatest amount of Total Payments (taking into account the applicable federal, state and local income taxes, the excise tax imposed by Code Section 4999 and the regulations thereunderall other taxes (including any interest and penalties) payable by Executive). If there is more than one such PaymentAll determinations required to made under this Section 6(f), then such reduction including whether reductions are necessary, shall be applied on a pro rata basis to all such Payments. Subject to made in good faith by the foregoing rulesCompany, the Employee may elector, in the Employee’s sole discretion, which and how much discretion of the Payments shall be eliminated Company, by an accounting or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise financial consulting firm selected in good faith by the Company in writing of for such purposes (the Employee’s election within 10 business days of receipt of notice“Auditor”). If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments The Auditor shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm under this Section 3 shall be binding upon provide detailed supporting calculations both to the Company and to Executive. All fees and expenses of the Employee Auditor shall be borne solely by the Company. The reduction of payments and benefits hereunder, if applicable under clause (ii) above, shall be made within 10 business days of by reducing, first, payments or benefits to be paid in cash hereunder in the date order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when a Payment becomes payable or transferable. As promptly as practicable following such determination aggregated with other payments and the elections hereunder, benefits from the Company (or its affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Executive’s base amount, then Executive shall pay or transfer to or for the benefit of the Employee immediately repay such amounts as are then due excess to the Employee and Company upon notification that an overpayment has been made. Nothing in this Section 6(f) shall promptly pay require the Company to be responsible for, or transfer to have any liability or for the benefit of the Employee in the future such amounts as become due to the Employee.obligation with respect to, Executive’s excise tax liabilities under Code Section 4999. (g)

Reduction of Payments. (i) Anything in this Agreement to the contrary notwithstanding, in the event that any payment or benefit received or to be received by Executive in connection with a Change in Control or the termination of Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Corporation, any person whose actions result in a Change in Control or any person affiliated with the Corporation or such person) (all such payments and benefits, the “Total Payments”) would not be deductible (in whole or part), by the Corporation, an affiliate or person making such payment or providing such benefit as a result of Section 280G of the Code, then the portion of the Total Payments due under this Agreement (the “Agreement Payments”) shall be reduced if, and only if, such reduction results in Executive’s receipt, on an after-tax basis, of a greater amount of the Total Payments after taking into account all applicable federal, state and local employment taxes, income taxes and the Excise Tax (all computed at the highest applicable marginal rate). Any reduction in the Agreement Payments required by this Paragraph I(i) shall first reduce the cash payments due under Subsection Paragraph A (bif necessary, to zero), and all other Agreement Payments shall thereafter be reduced (if necessary, to zero); provided, however, that Executive may elect to have noncash Agreement Payments reduced (or eliminated) above prior to any reduction of cash Agreement Payments. (ii) For purposes of this Paragraph I, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall be applied first have waived at such time and in such manner as not to Payments that constitute a “deferred compensationpayment” (within the meaning of Section 409A 280G(b) of the Code and the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject to taken into account, (ii) no portion of the foregoing rules, the Employee may electTotal Payments shall be taken into account which, in the Employee’s sole discretion, which opinion of tax counsel reasonably acceptable to Executive and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made selected by the Employee accounting firm which was, immediately prior to the Change in Control, the Corporation’s independent auditor (the “Auditor”), does not constitute a “parachute payment” within such 10-day period, then the Company may elect which and how much meaning of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, a present value shall be determined in accordance with Section 280G(d)(4280G(b)(2) of the Code. All determinations made , including by reason of Section 280G(b)(4)(A) of the Code, and (iii) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm under this Section 3 shall be binding upon Auditor in accordance with the Company principles of Sections 280G(d)(3) and the Employee and shall be made within 10 business days (4) of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the EmployeeCode.

Reduction of Payments. Any reduction (a) In the event that any amount or benefit paid, distributed or otherwise provided to the Executive by the Company, whether pursuant to this Agreement or otherwise (collectively, the “Covered Payments”), is or becomes subject to the tax (the “Excise Tax”) imposed under Subsection Section 4999 of the Internal Revenue Code, as amended (the “Code”), or any similar tax that may hereafter be imposed, the Company shall have the right to reduce the amount of the Severance Payments payable to the Executive under this Agreement such that the present value of all Covered Payments (as determined under the Code and the applicable regulations) does not constitute a “parachute payment” for purposes of Section 280G of the Code. In making any such reduction, the Company shall reduce the amount described in Section 6(c)(i)(B) hereof prior to reducing the amount described in Section 6(c)(i)(A) hereof. (b) above For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax: (i) such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, but no “parachute payments” in excess of the “base amount” shall be applied first treated as subject to the Excise Tax, unless, and except to the extent that, in the opinion of the Company’s independent certified public accountants or tax counsel selected by such accountants (the “Accountants”), there is no substantial authority that such Covered Payments that (in whole or in part) either do not constitute “deferred compensationparachute payments” or represent reasonable compensation for services actually rendered (within the meaning of Section 409A 280G(b)(4) of the Code and Code) in excess of the regulations thereunder). If there is more than one such Payment“base amount”, then such reduction and (ii) the value of any non-cash benefits or any deferred payment or benefit shall be applied on determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) The Company shall apply the provisions of this Section 8(c) in a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, reasonable manner and in good faith in accordance with then prevailing practices in the Employee’s sole discretion, which interpretation and how much application of Section 280G of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such electionCode. For purposes of applying the provisions of this Section 3, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm under this Section 3 shall be binding upon the Company and the Employee and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder8, the Company shall pay be entitled to rely on the written advice of legal counsel or transfer a nationally recognized accounting firm as to whether one or for the benefit more Covered Payments constitute “parachute payments” under Section 280G of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the EmployeeCode.

Reduction of Payments. Any reduction under Subsection (b) above shall If the Auditors determine that any Payment would be applied first to Payments that constitute “deferred compensation” (within nondeductible by the meaning Company because of Section 409A section 280G of the Code Code, then the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the regulations thereunder). If there is more than one such Payment, Participant may then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s his or her sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s his or her election within 10 business days of receipt of notice. If no such election is made by the Employee Participant within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee Participant promptly of such election. For purposes of this Section 3Article 17, a present value shall be determined in accordance with Section section 280G(d)(4) of the Code. All determinations made by the Accounting Firm Auditors under this Section 3 Article 17 shall be binding upon the Company and the Employee Participant and shall be made within 10 business 60 days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee Participant such amounts as are then due to him or her under the Employee Plan and shall promptly pay or transfer to or for the benefit of the Employee Participant in the future such amounts as become due to him or her under the EmployeePlan.

Reduction of Payments. Any reduction under Subsection (bi) above shall be applied first to Payments that constitute “deferred compensation” (within the meaning of Section 409A of the Code and the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject Anything in this Agreement to the foregoing rules, the Employee may electcontrary notwithstanding, in the Employee’s sole discretion, which and how much event it shall be determined that any payment or distribution by the Company to or for the benefit of the Payments shall Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a "Payment") would be eliminated or reduced (as long as after such election nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of the Payments equals amounts payable or distributable as severance benefits hereunder shall be reduced to the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments The "Reduced Amount" shall be eliminated or reduced (as long as after such election an amount expressed in present value which maximizes the aggregate present value of such severance benefits without causing any Payment to be nondeductible by the Payments equals Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced AmountAmount is zero and it is determined further that any Payment which is not part of the severance benefits payable hereunder would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments which are not severance benefits under this Agreement shall also be reduced (but not below zero) and shall notify to an amount expressed in present value which maximizes the Employee promptly aggregate present value of such electionPayments without causing any payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 3paragraph 5, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. . (ii) All determinations required to be made under this paragraph 5 shall be made by an accounting firm jointly selected by the Executive and the Company (the "Accounting Firm") and paid by the Company; provided that the Company shall have the right to appoint the Company's independent auditors to make such determinations, and such appointment shall be final. The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the Date of Termination or such earlier time as is requested by the Company and an opinion to the Executive that he or she has substantial authority not to report any excise tax on his Federal income tax return with respect to any Payments. Any such determination by the Accounting Firm under this Section 3 shall be binding upon the Company and the Employee Executive. The Executive shall determine which and how much of the Payments, shall be made eliminated or reduced consistent with the requirements of this paragraph 5, provided that, if the Executive does not make such determination within 10 ten business days of the date when a Payment becomes payable receipt of the calculations made by the Accounting Firm, the Company shall elect which and how much of the Payments shall be eliminated or transferablereduced consistent with the requirements of this paragraph 5 and shall notify the Executive promptly of such election; and provided further that any Payments which do not constitute gross income to the Executive shall not be reduced or eliminated unless all other Payments have first been eliminated. As promptly as practicable following such determination and the elections hereunderWithin five business days thereafter, the Company shall pay to or transfer distribute to or for the benefit of the Employee Executive such amounts as are then due to the Employee and shall promptly pay Executive under this Agreement. (iii) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Payments will have been made by the Company which should not have been made ("Overpayment") or transfer that Payments will not have been made by the Company which could have been made ("Underpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Executive or the Company which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of the Employee in the future such amounts Executive shall be treated for all purposes as become due a loan AB INITIO to the EmployeeExecutive which the Executive shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; PROVIDED, HOWEVER, that no such loan shall be deemed to have been made and no amount shall be payable to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at 120% of the applicable federal rate provided for in Section 7872(f)(2) of the Code, compounded semiannually. (iv) In the event that a reduction of benefits and payments is required pursuant to this section (c), the Company shall, to the extent practicable and permitted without causing any Overpayment, permit the Executive to select which payments and benefits provided for hereunder will be paid as provided by the Company to the Executive.