Common use of Section 280G Limitation on Payments Clause in Contracts

Section 280G Limitation on Payments. (i) In the event that all or any portion of the benefits provided under this Agreement, either alone or together with other payments and benefits that the Employee receives or is then entitled to receive from the Company or any member of the Affiliated Group, would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Company shall reduce such payments and benefits provided to the Employee under this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code; but only if, by reason of such reduction, the net after-tax benefit to the Employee shall exceed the net after-tax benefit if such reduction were not made. “Net after-tax benefit” for these purposes shall mean (A) the total amount payable to the Employee under this Agreement (and all other payments and benefits which the Employee receives or is then entitled to receive from the Company or any member of the Affiliated Group) that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (B) the amount of federal income taxes payable with respect to the foregoing calculated at the Employee’s applicable marginal income tax rate for each year in which the foregoing shall be paid to the Employee (based upon the rate in effect for such year as set forth in the Code at the time of the payment under this Agreement), less (C) the amount of excise taxes imposed with respect to the payments and benefits described in (A) above by Section 4999 of the Code. The amount of any reduction made under this Section 8(h) in the payment to which the Employee is entitled under this Agreement is hereinafter referred to as the “Relinquished Amount.” (ii) All determinations required to be made under this Section 8(h), including whether and when a Relinquished Amount shall be imposed and the amount of such Relinquished Amount, shall be made by the Company’s independent auditing firm used immediately prior to the Change of Control (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Employee. The Company shall provide any and all information, records and documents relating to Employee’s compensation and benefits paid or payable by the Company as may be reasonably requested by the Accounting Firm in connection with its determination of the Relinquished Amount. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. (iii) Notwithstanding anything herein to the contrary, expressed or implied, the Company’s obligations to the Employee pursuant to this Section 8(h) shall be limited to providing to the Employee payments and benefits in accordance with the determinations of the Accounting Firm. The Company shall not be liable for any inaccuracies in the determination of the Relinquished Amount by such Accounting Firm.

Section 280G Limitation on Payments. (i) In a. The Corporation shall make the event payment and provide the payments and benefits under Section 2 of this Agreement; provided, however, that if all or any portion of the payments and benefits provided under Section 2 of this Agreement, either alone or together with other payments and benefits that which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated GroupCorporation, would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Company Corporation shall reduce such payments and benefits provided to the Employee Executive under Section 2 of this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code; but only if, by reason of such reduction, the net after-tax benefit to the Employee Executive shall exceed the net after-tax benefit if such reduction were not made. “Net after-tax benefit” for these purposes shall mean the sum of (Ai) the total amount payable to the Employee Executive under Section 2 of this Agreement Agreement, plus (and ii) all other payments and benefits which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Group) Corporation that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (Biii) the amount of federal income taxes payable with respect to the foregoing calculated at the Employee’s applicable maximum marginal income tax rate for each year in which the foregoing shall be paid to the Employee Executive (based upon the rate in effect for such year as set forth in the Code at the time of the payment under this AgreementSection 2), less (Civ) the amount of excise taxes imposed with respect to the payments and benefits described in (Ai) and (ii) above by Section 4999 of the Code. The amount of any reduction made under this Section 8(h5(a) in the payment to which the Employee Executive is entitled under Section 2 of this Agreement is hereinafter referred to as the “Relinquished Amount.” b. If the Executive’s payment under Section 2 of this Agreement is reduced under Section 5(a) and, notwithstanding such reduction, the Executive subsequently pays or becomes obligated to pay any excise tax under Section 4999 of the Code on any portion of any payment or benefit the Executive receives (iiwhether pursuant to this Agreement or otherwise) All determinations required in connection with the event giving rise to the Executive’s right to receive payments and benefits under Section 2 of this Agreement, the Corporation shall pay to the Executive an amount equal to the Relinquished Amount, together with interest thereon at the rate set forth in Section 2(g) of this Agreement from the date of the payment to the Executive pursuant to Section 2 of this Agreement to and including the date of payment of the Relinquished Amount, and an amount (“Special Reimbursement”) which, after payment by the Executive of any federal, state and local taxes, including any further excise tax under Section 4999 of the Code resulting from all payments and benefits received (whether pursuant to this Agreement or otherwise, and including the Relinquished Amount and this Special Reimbursement), equals the total excise tax paid or payable. c. The determination of whether the payments shall be made under reduced as provided in this Section 8(h), including whether and when a Relinquished Amount shall be imposed 5 and the amount of such Relinquished Amount, reduction shall be made at the Corporation’s expense by an accounting firm retained by the Company’s independent auditing firm used immediately prior Corporation at the time the calculation is to be performed, or one selected by the Change of Control Corporation from among the five largest accounting firms in the United States (the “Accounting Firm”), which . The Accounting Firm shall provide its determination (the “Determination”), together with detailed supporting calculations both and documentation to the Company Corporation and the EmployeeExecutive within ten (10) days of the Termination Date. The Company shall provide any and all information, records and documents relating to Employee’s compensation and benefits paid or If the Accounting Firm determines that no excise tax is payable by the Company as may Executive with respect to the payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no excise tax will be reasonably requested by imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Corporation and the Executive. If the Accounting Firm in connection with its determination of the Relinquished Amount. In the event determines that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Controlan excise tax would be payable, the Employee Executive shall appoint another nationally recognized accounting firm have the right to make accept the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses Determination of the Accounting Firm shall be borne solely by the Company. (iii) Notwithstanding anything herein as to the contraryextent of the reduction, expressed or impliedif any, the Company’s obligations to the Employee pursuant to this Section 8(h) shall be limited 5, or to providing to have such Determination reviewed by an accounting firm selected by the Employee payments and benefits in accordance with Executive, at the determinations expense of the Accounting Firm. The Company shall not be liable for any inaccuracies Corporation, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Relinquished Amount by such Accounting FirmCorporation and Executive.

Section 280G Limitation on Payments. (i) In the event that all or any portion of the benefits provided under this Agreement, either alone or together with other payments and benefits that the Employee receives or is then entitled to receive from the Company or any member of the Affiliated Group, would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, the Company shall reduce such payments and benefits provided to the Employee under this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code; but only if, by reason of such reduction, the net after-tax benefit to the Employee shall exceed the net after-tax benefit if such reduction were not made. “"Net after-tax benefit” " for these purposes shall mean (A) the total amount payable to the Employee under this Agreement (and all other payments and benefits which the Employee receives or is then entitled to receive from the Company or any member of the Affiliated Group) that would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, less (B) the amount of federal income taxes payable with respect to the foregoing calculated at the Employee’s 's applicable marginal income tax rate for each year in which the foregoing shall be paid to the Employee (based upon the rate in effect for such year as set forth in the Code at the time of the payment under this Agreement), less (C) the amount of excise taxes imposed with respect to the payments and benefits described in (A) above by Section 4999 of the Code. The amount of any reduction made under this Section 8(h) in the payment to which the Employee is entitled under this Agreement is hereinafter referred to as the “"Relinquished Amount.”" (ii) All determinations required to be made under this Section 8(h), including whether and when a Relinquished Amount shall be imposed and the amount of such Relinquished Amount, shall be made by the Company’s 's independent auditing firm used immediately prior to the Change of Control (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to the Company and the Employee. The Company shall provide any and all information, records and documents relating to Employee’s compensation and benefits paid or payable by the Company as may be reasonably requested by the Accounting Firm in connection with its determination of the Relinquished Amount. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. (iii) Notwithstanding anything herein to the contrary, expressed or implied, the Company’s obligations to the Employee pursuant to this Section 8(h) shall be limited to providing to the Employee payments and benefits in accordance with the determinations of the Accounting Firm. The Company shall not be liable for any inaccuracies in the determination of the Relinquished Amount by such Accounting Firm.

Section 280G Limitation on Payments. (i) In a. The Company shall make the event payment and provide the payments and benefits under Section 1 of this Agreement; provided, however, that if all or any portion of the payments and benefits provided under Section 1 of this Agreement, either alone or together with other payments and benefits that which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated GroupCorporation, would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, the Company Corporation shall reduce such payments and benefits provided to the Employee Executive under Section 1 of this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code; but only if, by reason of such reduction, the net after-tax benefit to the Employee Executive shall exceed the net after-tax benefit if such reduction were not made. “"Net after-tax benefit” " for these purposes shall mean the sum of (Ai) the total amount payable to the Employee Executive under Section 1 of this Agreement Agreement, plus (and ii) all other payments and benefits which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Group) Corporation that would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, less (Biii) the amount of federal income taxes payable with respect to the foregoing calculated at the Employee’s applicable maximum marginal income tax rate for each year in which the foregoing shall be paid to the Employee Executive (based upon the rate in effect for such year as set forth in the Code at the time of the payment under this AgreementSection 1), less (Civ) the amount of excise taxes imposed with respect to the payments and benefits described in (Ai) and (ii) above by Section 4999 of the Code. The amount of any reduction made under this Section 8(h4(a) in the payment to which the Employee Executive is entitled under Section 1 of this Agreement is hereinafter referred to as the “"Relinquished Amount.” (ii) All determinations required to be made under this Section 8(h), including whether and when a Relinquished Amount shall be imposed and the amount of such Relinquished Amount, shall be made by the Company’s independent auditing firm used immediately prior to the Change of Control (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Employee. The Company shall provide any and all information, records and documents relating to Employee’s compensation and benefits paid or payable by the Company as may be reasonably requested by the Accounting Firm in connection with its determination of the Relinquished Amount. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. (iii) Notwithstanding anything herein to the contrary, expressed or implied, the Company’s obligations to the Employee pursuant to this Section 8(h) shall be limited to providing to the Employee payments and benefits in accordance with the determinations of the Accounting Firm. The Company shall not be liable for any inaccuracies in the determination of the Relinquished Amount by such Accounting Firm."

Section 280G Limitation on Payments. (ia) In The Company shall make the event payment and provide the benefits under Section 4 of this Agreement; provided, however, that if all or any portion of the benefits provided under Section 4 of this Agreement, either alone or together with other payments and benefits that which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Groupaffiliate, would constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall reduce such xxxxx xxxxxx xuch payments and benefits provided to the Employee Executive under Section 4 of this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code; but only if, by reason of such reduction, the net after-tax benefit to the Employee Executive shall exceed the net after-tax benefit if such reduction were not made. “"Net after-tax benefit” " for these purposes shall mean the sum of (Ai) the total amount payable to the Employee Executive under Section 4 of this Agreement Agreement, plus (and ii) all other payments and benefits which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Group) affiliate that would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, less (Biii) the amount of federal income taxes payable with respect to the foregoing calculated at the Employee’s applicable maximum marginal income tax rate for each year in which the foregoing shall be paid to the Employee Executive (based upon the rate in effect for such year as set forth in the Code at the time of the payment under this AgreementSection 4), less (Civ) the amount of excise taxes imposed with respect to the payments and benefits described in (Ai) and (ii) above by Section 4999 of the Code. The amount of any reduction made under this Section 8(h8(a) in the payment to which the Employee Executive is entitled under Section 4 of this Agreement is hereinafter referred to as the “"Relinquished Amount.”" (iib) All determinations required If the Executive's payment under Section 4 of this Agreement is reduced under Section 8(a) and, notwithstanding such reduction, the Executive subsequently pays or becomes obligated to be made pay any excise tax under Section 4999 of the Code on any payment or benefit he or she receives (whether pursuant to this Agreement or otherwise) in connection with the event giving rise to his or her right to receive payments and benefits under Section 8(h)4 of this Agreement, including whether and when a Relinquished Amount the Company shall be imposed and pay to the Executive an amount of such equal to the Relinquished Amount, shall be made by together with interest thereon at the Company’s independent auditing firm used immediately prior rate set forth in Section 7 of this Agreement from the date of the payment to the Change Executive pursuant to Section 4 of Control (this Agreement to and including the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Employee. The Company shall provide any and all information, records and documents relating to Employee’s compensation and benefits paid or payable by the Company as may be reasonably requested by the Accounting Firm in connection with its determination date of payment of the Relinquished Amount. In , and an amount ("Special Reimbursement") which, after payment by the event that the Accounting Firm is serving as accountant or auditor for the individualExecutive of any federal, entity or group effecting the Change of Controlstate and local taxes, the Employee shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses including any further excise tax under Section 4999 of the Accounting Firm shall be borne solely by the Company. Code on, with respect to or resulting from all payments and benefits received (iii) Notwithstanding anything herein to the contrary, expressed or implied, the Company’s obligations to the Employee whether pursuant to this Section 8(h) shall be limited to providing to the Employee payments Agreement or otherwise, and benefits in accordance with the determinations of the Accounting Firm. The Company shall not be liable for any inaccuracies in the determination of including the Relinquished Amount by such Accounting Firmand this Special Reimbursement), equals the total excise tax paid or payable.

Section 280G Limitation on Payments. (ia) In The Company shall make the event payment and provide the benefits under Section 4 of this Agreement; provided, however, that if all or any portion of the benefits provided under Section 4 of this Agreement, either alone or together with other payments and benefits that which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Groupaffiliate, would constitute a “"parachute payment” " within the meaning of Section meaxxxx xx Xxxxxxn 280G of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall reduce such payments and benefits provided to the Employee Executive under Section 4 of this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code; but only if, by reason of such reduction, the net after-tax benefit to the Employee Executive shall exceed the net after-tax benefit if such reduction were not made. “"Net after-tax benefit” " for these purposes shall mean the sum of (Ai) the total amount payable to the Employee Executive under Section 4 of this Agreement Agreement, plus (and ii) all other payments and benefits which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Group) affiliate that would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, less (Biii) the amount of federal income taxes payable with respect to the foregoing calculated at the Employee’s applicable maximum marginal income tax rate for each year in which the foregoing shall be paid to the Employee Executive (based upon the rate in effect for such year as set forth in the Code at the time of the payment under this AgreementSection 4), less (Civ) the amount of excise taxes imposed with respect to the payments and benefits described in (Ai) and (ii) above by Section 4999 of the Code. The amount of any reduction made under this Section 8(h8(a) in the payment to which the Employee Executive is entitled under Section 4 of this Agreement is hereinafter referred to as the “"Relinquished Amount.”" (iib) All determinations required If the Executive's payment under Section 4 of this Agreement is reduced under Section 8(a) and, notwithstanding such reduction, the Executive subsequently pays or becomes obligated to be made pay any excise tax under Section 4999 of the Code on any payment or benefit he or she receives (whether pursuant to this Agreement or otherwise) in connection with the event giving rise to his or her right to receive payments and benefits under Section 8(h)4 of this Agreement, including whether and when a Relinquished Amount the Company shall be imposed and pay to the Executive an amount of such equal to the Relinquished Amount, shall be made by together with interest thereon at the Company’s independent auditing firm used immediately prior rate set forth in Section 7 of this Agreement from the date of the payment to the Change Executive pursuant to Section 4 of Control (this Agreement to and including the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Employee. The Company shall provide any and all information, records and documents relating to Employee’s compensation and benefits paid or payable by the Company as may be reasonably requested by the Accounting Firm in connection with its determination date of payment of the Relinquished Amount. In , and an amount ("Special Reimbursement") which, after payment by the event that the Accounting Firm is serving as accountant or auditor for the individualExecutive of any federal, entity or group effecting the Change of Controlstate and local taxes, the Employee shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses including any further excise tax under Section 4999 of the Accounting Firm shall be borne solely by the Company. Code on, with respect to or resulting from all payments and benefits received (iii) Notwithstanding anything herein to the contrary, expressed or implied, the Company’s obligations to the Employee whether pursuant to this Section 8(h) shall be limited to providing to the Employee payments Agreement or otherwise, and benefits in accordance with the determinations of the Accounting Firm. The Company shall not be liable for any inaccuracies in the determination of including the Relinquished Amount by such Accounting Firmand this Special Reimbursement), equals the total excise tax paid or payable.

Section 280G Limitation on Payments. (ia) In The Company shall make the event payment and provide the benefits under Section 4 of this Agreement; provided, however, that if all or any portion of the benefits provided under Section 4 of this Agreement, either alone or together with other payments and benefits that which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Groupaffiliate, would constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall reduce xxx Xxxxxxx xxxxx xxxuce such payments and benefits provided to the Employee Executive under Section 4 of this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code; but only if, by reason of such reduction, the net after-tax benefit to the Employee Executive shall exceed the net after-tax benefit if such reduction were not made. “"Net after-tax benefit” " for these purposes shall mean the sum of (Ai) the total amount payable to the Employee Executive under Section 4 of this Agreement Agreement, plus (and ii) all other payments and benefits which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Group) affiliate that would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, less (Biii) the amount of federal income taxes payable with respect to the foregoing calculated at the Employee’s applicable maximum marginal income tax rate for each year in which the foregoing shall be paid to the Employee Executive (based upon the rate in effect for such year as set forth in the Code at the time of the payment under this AgreementSection 4), less (Civ) the amount of excise taxes imposed with respect to the payments and benefits described in (Ai) and (ii) above by Section 4999 of the Code. The amount of any reduction made under this Section 8(h8(a) in the payment to which the Employee Executive is entitled under Section 4 of this Agreement is hereinafter referred to as the “"Relinquished Amount.”" (iib) All determinations required If the Executive's payment under Section 4 of this Agreement is reduced under Section 8(a) and, notwithstanding such reduction, the Executive subsequently pays or becomes obligated to be made pay any excise tax under Section 4999 of the Code on any payment or benefit he or she receives (whether pursuant to this Agreement or otherwise) in connection with the event giving rise to his or her right to receive payments and benefits under Section 8(h)4 of this Agreement, including whether and when a Relinquished Amount the Company shall be imposed and pay to the Executive an amount of such equal to the Relinquished Amount, shall be made by together with interest thereon at the Company’s independent auditing firm used immediately prior rate set forth in Section 7 of this Agreement from the date of the payment to the Change Executive pursuant to Section 4 of Control (this Agreement to and including the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Employee. The Company shall provide any and all information, records and documents relating to Employee’s compensation and benefits paid or payable by the Company as may be reasonably requested by the Accounting Firm in connection with its determination date of payment of the Relinquished Amount. In , and an amount ("Special Reimbursement") which, after payment by the event that the Accounting Firm is serving as accountant or auditor for the individualExecutive of any federal, entity or group effecting the Change of Controlstate and local taxes, the Employee shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses including any further excise tax under Section 4999 of the Accounting Firm shall be borne solely by the Company. Code on, with respect to or resulting from all payments and benefits received (iii) Notwithstanding anything herein to the contrary, expressed or implied, the Company’s obligations to the Employee whether pursuant to this Section 8(h) shall be limited to providing to the Employee payments Agreement or otherwise, and benefits in accordance with the determinations of the Accounting Firm. The Company shall not be liable for any inaccuracies in the determination of including the Relinquished Amount by such Accounting Firmand this Special Reimbursement), equals the total excise tax paid or payable.

Section 280G Limitation on Payments. (ia) In The Company shall make the event payment and provide the benefits under Section 4 of this Agreement; provided, however, that if all or any portion of the benefits provided under Section 4 of this Agreement, either alone or together with other payments and benefits that which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Groupaffiliate, would constitute a “"parachute payment” " within the meaning of mexxxxx xx Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall reduce such payments and benefits provided to the Employee Executive under Section 4 of this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code; but only if, by reason of such reduction, the net after-tax benefit to the Employee Executive shall exceed the net after-tax benefit if such reduction were not made. “"Net after-tax benefit” " for these purposes shall mean the sum of (Ai) the total amount payable to the Employee Executive under Section 4 of this Agreement Agreement, plus (and ii) all other payments and benefits which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Group) affiliate that would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, less (Biii) the amount of federal income taxes payable with respect to the foregoing calculated at the Employee’s applicable maximum marginal income tax rate for each year in which the foregoing shall be paid to the Employee Executive (based upon the rate in effect for such year as set forth in the Code at the time of the payment under this AgreementSection 4), less (Civ) the amount of excise taxes imposed with respect to the payments and benefits described in (Ai) and (ii) above by Section 4999 of the Code. The amount of any reduction made under this Section 8(h8(a) in the payment to which the Employee Executive is entitled under Section 4 of this Agreement is hereinafter referred to as the “"Relinquished Amount.”" (iib) All determinations required If the Executive's payment under Section 4 of this Agreement is reduced under Section 8(a) and, notwithstanding such reduction, the Executive subsequently pays or becomes obligated to be made pay any excise tax under Section 4999 of the Code on any payment or benefit he or she receives (whether pursuant to this Agreement or otherwise) in connection with the event giving rise to his or her right to receive payments and benefits under Section 8(h)4 of this Agreement, including whether and when a Relinquished Amount the Company shall be imposed and pay to the Executive an amount of such equal to the Relinquished Amount, shall be made by together with interest thereon at the Company’s independent auditing firm used immediately prior rate set forth in Section 7 of this Agreement from the date of the payment to the Change Executive pursuant to Section 4 of Control (this Agreement to and including the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Employee. The Company shall provide any and all information, records and documents relating to Employee’s compensation and benefits paid or payable by the Company as may be reasonably requested by the Accounting Firm in connection with its determination date of payment of the Relinquished Amount. In , and an amount ("Special Reimbursement") which, after payment by the event that the Accounting Firm is serving as accountant or auditor for the individualExecutive of any federal, entity or group effecting the Change of Controlstate and local taxes, the Employee shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses including any further excise tax under Section 4999 of the Accounting Firm shall be borne solely by the Company. Code on, with respect to or resulting from all payments and benefits received (iii) Notwithstanding anything herein to the contrary, expressed or implied, the Company’s obligations to the Employee whether pursuant to this Section 8(h) shall be limited to providing to the Employee payments Agreement or otherwise, and benefits in accordance with the determinations of the Accounting Firm. The Company shall not be liable for any inaccuracies in the determination of including the Relinquished Amount by such Accounting Firmand this Special Reimbursement), equals the total excise tax paid or payable.

Section 280G Limitation on Payments. (ia) In The Company shall make the event payment and provide the benefits under Section 4 of this Agreement; provided, however, that if all or any portion of the benefits provided under Section 4 of this Agreement, either alone or together with other payments and benefits that which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Groupaffiliate, would constitute a “"parachute payment” " within the meaning of Section mexxxxx xx Xxxxxxn 280G of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall reduce such payments and benefits provided to the Employee Executive under Section 4 of this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code; but only if, by reason of such reduction, the net after-tax benefit to the Employee Executive shall exceed the net after-tax benefit if such reduction were not made. “"Net after-tax benefit” " for these purposes shall mean the sum of (Ai) the total amount payable to the Employee Executive under Section 4 of this Agreement Agreement, plus (and ii) all other payments and benefits which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Group) affiliate that would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, less (Biii) the amount of federal income taxes payable with respect to the foregoing calculated at the Employee’s applicable maximum marginal income tax rate for each year in which the foregoing shall be paid to the Employee Executive (based upon the rate in effect for such year as set forth in the Code at the time of the payment under this AgreementSection 4), less (Civ) the amount of excise taxes imposed with respect to the payments and benefits described in (Ai) and (ii) above by Section 4999 of the Code. The amount of any reduction made under this Section 8(h8(a) in the payment to which the Employee Executive is entitled under Section 4 of this Agreement is hereinafter referred to as the “"Relinquished Amount.”" (iib) All determinations required If the Executive's payment under Section 4 of this Agreement is reduced under Section 8(a) and, notwithstanding such reduction, the Executive subsequently pays or becomes obligated to be made pay any excise tax under Section 4999 of the Code on any payment or benefit he or she receives (whether pursuant to this Agreement or otherwise) in connection with the event giving rise to his or her right to receive payments and benefits under Section 8(h)4 of this Agreement, including whether and when a Relinquished Amount the Company shall be imposed and pay to the Executive an amount of such equal to the Relinquished Amount, shall be made by together with interest thereon at the Company’s independent auditing firm used immediately prior rate set forth in Section 7 of this Agreement from the date of the payment to the Change Executive pursuant to Section 4 of Control (this Agreement to and including the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Employee. The Company shall provide any and all information, records and documents relating to Employee’s compensation and benefits paid or payable by the Company as may be reasonably requested by the Accounting Firm in connection with its determination date of payment of the Relinquished Amount. In , and an amount ("Special Reimbursement") which, after payment by the event that the Accounting Firm is serving as accountant or auditor for the individualExecutive of any federal, entity or group effecting the Change of Controlstate and local taxes, the Employee shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses including any further excise tax under Section 4999 of the Accounting Firm shall be borne solely by the Company. Code on, with respect to or resulting from all payments and benefits received (iii) Notwithstanding anything herein to the contrary, expressed or implied, the Company’s obligations to the Employee whether pursuant to this Section 8(h) shall be limited to providing to the Employee payments Agreement or otherwise, and benefits in accordance with the determinations of the Accounting Firm. The Company shall not be liable for any inaccuracies in the determination of including the Relinquished Amount by such Accounting Firmand this Special Reimbursement), equals the total excise tax paid or payable.

Section 280G Limitation on Payments. (i) In a. The Corporation shall make the event payment and provide the payments and benefits under Section 2 of this Agreement; provided, however, that if all or any portion of the payments and benefits provided under Section 2 of this Agreement, either alone or together with other payments and benefits that which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated GroupCorporation, would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, the Company Corporation shall reduce such payments and benefits provided to the Employee Executive under Section 2 of this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code; but only if, by reason of such reduction, the net after-tax benefit to the Employee Executive shall exceed the net after-tax benefit if such reduction were not made. “"Net after-tax benefit” " for these purposes shall mean the sum of (Ai) the total amount payable to the Employee Executive under Section 2 of this Agreement Agreement, plus (and ii) all other payments and benefits which the Employee Executive receives or is then entitled to receive from the Company or any member of the Affiliated Group) Corporation that would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, less (Biii) the amount of federal income taxes payable with respect to the foregoing calculated at the Employee’s applicable maximum marginal income tax rate for each year in which the foregoing shall be paid to the Employee Executive (based upon the rate in effect for such year as set forth in the Code at the time of the payment under this AgreementSection 2), less (Civ) the amount of excise taxes imposed with respect to the payments and benefits described in (Ai) and (ii) above by Section 4999 of the Code. The amount of any reduction made under this Section 8(h5(a) in the payment to which the Employee Executive is entitled under Section 2 of this Agreement is hereinafter referred to as the “"Relinquished Amount.”" b. If the Executive's payment under Section 2 of this Agreement is reduced under Section 5(a) and, notwithstanding such reduction, the Executive subsequently pays or becomes obligated to pay any excise tax under Section 4999 of the Code on any portion of any payment or benefit the Executive receives (iiwhether pursuant to this Agreement or otherwise) All determinations required in connection with the event giving rise to the Executive's right to receive payments and benefits under Section 2 of this Agreement, the Corporation shall pay to the Executive an amount equal to the Relinquished Amount, together with interest thereon at the rate set forth in Section 2(g) of this Agreement from the date of the payment to the Executive pursuant to Section 2 of this Agreement to and including the date of payment of the Relinquished Amount, and an amount ("Special Reimbursement") which, after payment by the Executive of any federal, state and local taxes, including any further excise tax under Section 4999 of the Code resulting from all payments and benefits received (whether pursuant to this Agreement or otherwise, and including the Relinquished Amount and this Special Reimbursement), equals the total excise tax paid or payable. c. The determination of whether the payments shall be made under reduced as provided in this Section 8(h), including whether and when a Relinquished Amount shall be imposed 5 and the amount of such Relinquished Amount, reduction shall be made at the Corporation's expense by an accounting firm retained by the Company’s independent auditing firm used immediately prior Corporation at the time the calculation is to be performed, or one selected by the Change of Control Corporation from among the five largest accounting firms in the United States (the “"Accounting Firm”"). The Accounting Firm shall provide its determination (the "Determination"), which shall provide together with detailed supporting calculations both and documentation to the Company Corporation and the EmployeeExecutive within ten (10) days of the Termination Date. The Company shall provide any and all information, records and documents relating to Employee’s compensation and benefits paid or If the Accounting Firm determines that no excise tax is payable by the Company as may Executive with respect to the payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no excise tax will be reasonably requested by imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Corporation and the Executive. If the Accounting Firm in connection with its determination of the Relinquished Amount. In the event determines that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Controlan excise tax would be payable, the Employee Executive shall appoint another nationally recognized accounting firm have the right to make accept the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses Determination of the Accounting Firm shall be borne solely by the Company. (iii) Notwithstanding anything herein as to the contraryextent of the reduction, expressed or impliedif any, the Company’s obligations to the Employee pursuant to this Section 8(h) shall be limited 5, or to providing to have such Determination reviewed by an accounting firm selected by the Employee payments and benefits in accordance with Executive, at the determinations expense of the Accounting Firm. The Company shall not be liable for any inaccuracies Corporation, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Relinquished Amount by such Accounting FirmCorporation and Executive.