Common use of Section 280G Limitation Clause in Contracts

Section 280G Limitation. Notwithstanding anything in this Agreement to the contrary, in the event that any payment or benefit received or to be received by Executive (all such payments and benefits being hereinafter referred to as the “Total Payments”) would not be deductible (in whole or part) by the Company Group or any affiliates making such payment or providing such benefit as a result of Section 280G of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments required by any similar reduction or elimination provision contained in such other plan, arrangement or agreement), the portion of the Total Payments that does not constitute “nonqualified deferred compensation” under Section 409A of the Code shall first be reduced (if necessary, to zero), and all other Total Payments shall thereafter be reduced (if necessary, to zero) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first); provided, however, that such reduction shall only be made if the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under Section 4999 of the Code on such unreduced Total Payments). Any determination required to be made under this Section shall be made by independent tax counsel reasonably acceptable to both Executive and the Company, and shall be paid for by the Company (“Tax Counsel”). It is possible that, after the determinations and selections made pursuant to the foregoing paragraph, Executive will receive payments and/or benefits that are, in the aggregate, either more or less than the amount determined under such paragraph (hereafter referred to as an “Excess Payment” or “Underpayment”, as applicable). If Tax Counsel determines that an Excess Payment has been made, then Executive shall promptly repay the Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If Tax Counsel determines that an Underpayment has occurred, the Company Group shall promptly (but in any event within ten (10) days of such determination) pay to Executive an amount equal to the Underpayment, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Executive had the provisions of the foregoing paragraph not been applied until the date of payment.

Section 280G Limitation. (a) Notwithstanding anything in this Agreement any other provision to the contrary, in if any payments or benefits Executive would receive from the event that any payment Company pursuant to this Agreement or benefit received or to be received by Executive otherwise (all such payments and benefits being hereinafter referred to as collectively, the “Total Payments”) would not be deductible would, either separately or in the aggregate, (in whole or parti) by constitute “parachute payments” within the Company Group or any affiliates making such payment or providing such benefit as a result meaning of Section 280G of the U.S. Internal Revenue Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code of 1986, as amended (the “CodeExcise Tax”) then), then the Payments will be equal to the extent necessary Reduced Amount (defined below). The “Reduced Amount” will be either (1) the entire amount of the Payments, or (2) an amount equal to make such the largest portion of the Total Payments deductible that would result in no portion of any of the Payments (and after reduction) being subject to the Excise Tax, whichever amount after taking into account any all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments. If a reduction in the Total Payments is to be made so that the amount of the Payments equals the Reduced Amount, the Payments will be paid only to the extent permitted under the Reduced Amount alternative; provided, that in the event the Reduced Amount is paid, the cash payments set forth in Section 10.2(a) shall be reduced as required by the operation of this Section 10.4. (b) The Company shall engage the accounting firm engaged by the Company for general audit purposes at least 20 business days prior to the effective date of the Change in Control to perform any similar reduction calculation necessary to determine the amount, if any, payable to Executive pursuant to Article 10, as limited by this Section 10.4. If the accounting firm so engaged by the Company is also serving as accountant or elimination provision contained auditor for the individual, entity or group that will control the Company following the Change in Control, the Company may appoint a nationally recognized accounting firm other than the accounting firm engaged by the Company for general audit purposes to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. (c) The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within 20 days after the date on which such accounting firm has been engaged to make such determinations or within such other plantime period as agreed to by the Company and Executive. Any good faith determinations of the accounting firm made hereunder shall be final, arrangement or agreement)binding and conclusive upon the Company and Executive. (d) Notwithstanding the foregoing, in determining the reduction, if any, that shall occur as a result of this Section 10.4, the portion amounts payable or benefits to be provided to Executive shall be reduced such that the economic loss to Executive as a result of the Total Payments that does not constitute “nonqualified deferred compensation” under Excise Tax elimination is minimized. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall first be reduced (if necessary, to on a pro rata basis but not below zero), and all other Total Payments shall thereafter be reduced (if necessary, to zero) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first); provided, however, that such reduction shall only be made if the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under Section 4999 of the Code on such unreduced Total Payments). Any determination required to be made under this Section shall be made by independent tax counsel reasonably acceptable to both Executive and the Company, and shall be paid for by the Company (“Tax Counsel”). It is possible that, after the determinations and selections made pursuant to the foregoing paragraph, Executive will receive payments and/or benefits that are, in the aggregate, either more or less than the amount determined under such paragraph (hereafter referred to as an “Excess Payment” or “Underpayment”, as applicable). If Tax Counsel determines that an Excess Payment has been made, then Executive shall promptly repay the Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If Tax Counsel determines that an Underpayment has occurred, the Company Group shall promptly (but in any event within ten (10) days of such determination) pay to Executive an amount equal to the Underpayment, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Executive had the provisions of the foregoing paragraph not been applied until the date of payment.

Section 280G Limitation. Notwithstanding anything in this Agreement to the contrary, in the event that any payment or benefit received or to be received by Executive Employee (all such payments and benefits being hereinafter referred to as the “"Total Payments”") would not be deductible (in whole or part) by the Company Group or any affiliates making such payment or providing such benefit as a result of Section 280G of the U.S. Internal Revenue Code of 1986, as amended (the “"Code”") then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments required by any similar reduction or elimination provision contained in such other plan, arrangement or agreement), the portion of the Total Payments that does not constitute “"nonqualified deferred compensation” " under Section 409A of the Code shall will first be reduced (if necessary, to zero), and all other Total Payments shall will thereafter be reduced (if necessary, to zero) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first); provided, however, provided however that such reduction shall will only be made if the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under Section 4999 of the Code on such unreduced Total Payments). Any determination required to be made under this Section shall paragraph will be made by independent tax counsel reasonably acceptable to both Executive Employee and the Company, and shall will be paid for by the Company (“"Tax Counsel”"). It is possible that, after the determinations and selections made pursuant to the foregoing paragraph, Executive Employee will receive payments and/or benefits that are, in the aggregate, either more or less than the amount determined under such paragraph (hereafter referred to as an “"Excess Payment” " or “"Underpayment”", as applicable). If Tax Counsel determines that an Excess Payment has been made, then Executive shall Employee must promptly repay the Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in section Section 1274(d) of the Code) from the date of Executive’s Employee's receipt of such Excess Payment until the date of such repayment. If Tax Counsel determines that an Underpayment has occurred, the Company Group shall will promptly (but in any event within ten (10) days of such determination) pay to Executive Employee an amount equal to the Underpayment, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Executive Employee had the provisions of the foregoing paragraph not been applied until the date of payment.

Section 280G Limitation. Notwithstanding anything in this Agreement to the contrary, in the event that any payment or benefit received or to be received by Executive Employee (all such payments and benefits being hereinafter referred to as the “Total Payments”) would not be deductible (in whole or part) by the Company Group or any affiliates making such payment or providing such benefit as a result of Section 280G of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments required by any similar reduction or elimination provision contained in such other plan, arrangement or agreement), the portion of the Total Payments that does not constitute “nonqualified deferred compensation” under Section 409A of the Code shall will first be reduced (if necessary, to zero), and all other Total Payments shall will thereafter be reduced (if necessary, to zero) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first); provided, however, provided however that such reduction shall will only be made if the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under Section 4999 of the Code on such unreduced Total Payments). Any determination required to be made under this Section shall paragraph will be made by independent tax counsel reasonably acceptable to both Executive Employee and the Company, and shall will be paid for by the Company (“Tax Counsel”). It is possible that, after the determinations and selections made pursuant to the foregoing paragraph, Executive Employee will receive payments and/or benefits that are, in the aggregate, either more or less than the amount determined under such paragraph (hereafter referred to as an “Excess Payment” or “Underpayment”, as applicable). If Tax Counsel determines that an Excess Payment has been made, then Executive shall Employee must promptly repay the Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in section Section 1274(d) of the Code) from the date of ExecutiveEmployee’s receipt of such Excess Payment until the date of such repayment. If Tax Counsel determines that an Underpayment has occurred, the Company Group shall will promptly (but in any event within ten (10) days of such determination) pay to Executive Employee an amount equal to the Underpayment, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Executive Employee had the provisions of the foregoing paragraph not been applied until the date of payment.

Section 280G Limitation. a. Notwithstanding anything in this Agreement any other provision to the contrary, in if any payments or benefits Executive would receive from the event that any payment Company pursuant to this Agreement or benefit received or to be received by Executive otherwise (all such payments and benefits being hereinafter referred to as collectively, the “Total Payments”) would not be deductible would, either separately or in the aggregate, (in whole or parti) by constitute “parachute payments” within the Company Group or any affiliates making such payment or providing such benefit as a result meaning of Section 280G of the U.S. Internal Revenue Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code of 1986, as amended (the “CodeExcise Tax”) then), then the Payments will be equal to the extent necessary Reduced Amount (defined below). The “Reduced Amount” will be either (1) the entire amount of the Payments, or (2) an amount equal to make such the largest portion of the Total Payments deductible that would result in no portion of any of the Payments (and after reduction) being subject to the Excise Tax, whichever amount after taking into account any all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments. If a reduction in the Total Payments is to be made so that the amount of the Payments equals the Reduced Amount, the Payments will be paid only to the extent permitted under the Reduced Amount alternative; provided, that in the event the Reduced Amount is paid, the cash payments set forth in Section 9 shall be reduced as required by the operation of this Section 25. b. The Company shall engage the accounting firm engaged by the Company for general audit purposes at least 20 business days prior to the effective date of the Change in Control to perform any similar reduction calculation necessary to determine the amount, if any, payable to Executive pursuant to Section 9, as limited by this Section 25. If the accounting firm so engaged by the Company is also serving as accountant or elimination provision contained auditor for the individual, entity or group that will control the Company following the Change in Control, the Company may appoint a nationally recognized accounting firm other than the accounting firm engaged by the Company for general audit purposes to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. c. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within 20 days after the date on which such accounting firm has been engaged to make such determinations or within such other plantime period as agreed to by the Company and Executive. Any good faith determinations of the accounting firm made hereunder shall be final, arrangement or agreement)binding and conclusive upon the Company and Executive. d. Notwithstanding the foregoing, in determining the reduction, if any, that shall occur as a result of this Section 25, the portion amounts payable or benefits to be provided to Executive shall be reduced such that the economic loss to Executive as a result of the Total Payments that does not constitute “nonqualified deferred compensation” under Excise Tax elimination is minimized. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall first be reduced (on a pro rata basis but not below zero. e. In the event that following the payment of any Payments pursuant to Section 9, as reduced, if necessaryapplicable, to zeroas required by the operation of Section 25(a)-(d), and all other Total Payments shall thereafter be reduced the Internal Revenue Service (if necessary, to zerothe “IRS”) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first); provided, however, determines that such reduction shall only be made if Executive is liable for the amount Excise Tax as a result of the receipt of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than Payments or equal to the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under Section 4999 of the Code on such unreduced Total Payments). Any determination required to be made under this Section shall be made by independent tax counsel reasonably acceptable to both Executive and the Company, and shall be paid for by the Company (“Tax Counsel”). It is possible that, after the determinations and selections made pursuant to the foregoing paragraph, Executive will receive payments and/or benefits that are, in the aggregate, either more or less than the amount determined under such paragraph (hereafter referred to as an “Excess Payment” or “Underpayment”Reduced Amount, as applicable). If Tax Counsel determines that an Excess Payment has been made, then Executive shall promptly repay the Excess Payment be obligated to pay back to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in section 1274(d) within 30 days after final IRS determination, an amount of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If Tax Counsel determines that an Underpayment has occurredPayments or Reduced Amount, the Company Group shall promptly (but in any event within ten (10) days of such determination) pay to Executive an amount as applicable, equal to the Underpayment“Repayment Amount.” The Repayment Amount shall be the smallest such amount, together if any, as shall be required to be paid to the Company so that the Executive’s net proceeds with interest respect to the Payments or Reduced Amount, as applicable, (after taking into account the payment of the Excise Tax imposed on such amount at Payments or Reduced Amount, as applicable) shall be maximized. Notwithstanding the applicable federal rate from foregoing, the date such amount Repayment Amount shall be zero if a Repayment Amount of more than zero would have been paid not eliminate the Excise Tax imposed on the Payments or Reduced Amount. If the Excise Tax is not eliminated pursuant to this paragraph, Executive had shall pay the provisions of the foregoing paragraph not been applied until the date of paymentExcise Tax.

Section 280G Limitation. Notwithstanding anything Anything in this Agreement to the contrarycontrary notwithstanding, in the event that the amount of any compensation, payment or benefit received or to be received by Executive (all such payments and benefits being hereinafter referred to as the “Total Payments”) would not be deductible (in whole or part) distribution by the Company Group to or any affiliates making such payment for the benefit of you, whether paid or providing such benefit as payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a result of manner consistent with Section 280G of the U.S. Internal Revenue Code of 1986, as amended and the applicable regulations thereunder (the “CodeSeverance Payments”) then), would be subject to the extent necessary to make such portion excise tax imposed by Section 4999 of the Total Payments deductible (and after taking into account any reduction in the Total Payments required by any similar reduction or elimination provision contained in such other plan, arrangement or agreement)Code, the portion following provisions shall apply: (a) If the Severance Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Total Payments that does not constitute “nonqualified deferred compensation” under Section 409A of the Code shall first be reduced (if necessaryFederal, to zero)state, and all other Total Payments shall thereafter be reduced (if necessary, to zero) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first); provided, however, that such reduction shall only be made if local income and employment taxes payable by you on the amount of such Total Paymentsthe Severance Payments which are in excess of the Threshold Amount, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is are greater than or equal to the amount Threshold Amount, you shall be entitled to the full benefits payable under this Agreement. Xx. Xxxx Xxxxx January 10, 2014 (b) If the Threshold Amount is less than (x) the Severance Payments, but greater than (y) the Severance Payments reduced by the sum of such Total Payments without such reduction (but after subtracting 1) the net amount Excise Tax and (2) the total of federalthe Federal, state state, and local income and employment taxes on such Total Payments and the amount of the Severance Payments which are in excess of the Threshold Amount, then the Severance Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Severance Payments shall not exceed the Threshold Amount. In such event, the Severance Payments shall be reduced in the following order: (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. (c) For the purposes of this Section, “Threshold Amount” shall mean three times your “base amount” within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00); and “Excise Tax” shall mean the excise tax imposed under by Section 4999 of the Code on such unreduced Total Payments). Any determination required to be made under this Section shall be made by independent tax counsel reasonably acceptable to both Executive and the CompanyCode, and shall be paid for any interest or penalties incurred by the Company (“Tax Counsel”). It is possible that, after the determinations and selections made pursuant you with respect to the foregoing paragraph, Executive will receive payments and/or benefits that are, in the aggregate, either more or less than the amount determined under such paragraph (hereafter referred to as an “Excess Payment” or “Underpayment”, as applicable). If Tax Counsel determines that an Excess Payment has been made, then Executive shall promptly repay the Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If Tax Counsel determines that an Underpayment has occurred, the Company Group shall promptly (but in any event within ten (10) days of such determination) pay to Executive an amount equal to the Underpayment, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Executive had the provisions of the foregoing paragraph not been applied until the date of paymentexcise tax.

Section 280G Limitation. Notwithstanding anything in this Agreement to the contrary, in the event that any payment or benefit received or to be received by Executive (all such payments and benefits being hereinafter referred to as the “Total Payments”) would not be deductible (in whole or part) by the Company Group Employer or any affiliates making such payment or providing such benefit as a result of Section 280G of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments required by any similar reduction or elimination provision contained in such other plan, arrangement or agreement), the portion of the Total Payments that does not constitute “nonqualified deferred compensation” under Section 409A of the Code shall first be reduced (if necessary, to zero), and all other Total Payments shall thereafter be reduced (if necessary, to zero) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first); provided, however, that such reduction shall only be made if the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under Section 4999 of the Code on such unreduced Total Payments). Any determination required to be made under this Section paragraph shall be made by independent tax counsel reasonably acceptable to both Executive and the CompanyEmployer, and shall be paid for by the Company Employer (“Tax Counsel”). It is possible that, after the determinations and selections made pursuant to the foregoing paragraph, Executive will receive payments and/or benefits that are, in the aggregate, either more or less than the amount determined under such paragraph (hereafter referred to as an “Excess Payment” or “Underpayment”, as applicable). If Tax Counsel determines that an Excess Payment has been made, then Executive shall promptly repay the Excess Payment to the CompanyEmployer, together with interest on the Excess Payment at the applicable federal rate (as defined in section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If Tax Counsel determines that an Underpayment has occurred, the Company Group Employer shall promptly (but in any event within ten (10) days of such determination) pay to Executive an amount equal to the Underpayment, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Executive had the provisions of the foregoing paragraph not been applied until the date of payment.

Section 280G Limitation. (a) Notwithstanding anything in this Agreement any other provision to the contrary, in if any payments or benefits Executive would receive from the event that any payment Company pursuant to this Agreement or benefit received or to be received by Executive otherwise (all such payments and benefits being hereinafter referred to as collectively, the “Total Payments”) would not be deductible would, either separately or in the aggregate, (in whole or parti) by constitute “parachute payments” within the Company Group or any affiliates making such payment or providing such benefit as a result meaning of Section 280G of the U.S. Internal Revenue Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code of 1986, as amended (the “CodeExcise Tax”) then), then the Payments will be equal to the extent necessary Reduced Amount (defined below). The “Reduced Amount” will be either (1) the entire amount of the Payments, or (2) an amount equal to make such the largest portion of the Total Payments deductible that would result in no portion of any of the Payments (and after reduction) being subject to the Excise Tax, whichever amount after taking into account any reduction in the Total Payments required by any similar reduction or elimination provision contained in such other plan, arrangement or agreement), the portion of the Total Payments that does not constitute “nonqualified deferred compensation” under Section 409A of the Code shall first be reduced (if necessary, to zero), and all other Total Payments shall thereafter be reduced (if necessary, to zero) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first); provided, however, that such reduction shall only be made if the amount of such Total Payments, as so reduced (and after subtracting the net amount of applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes on such reduced Total Payments) is greater than or equal to the amount which could be obtained from a deduction of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes taxes), results in the Executive’s receipt, on such Total an after-tax basis, of the greatest amount of the Payments. If a reduction in the Payments and is to be made so that the amount of the excise tax imposed Payments equals the Reduced Amount, the Payments will be paid only to the extent permitted under the Reduced Amount alternative; provided, that in the event the Reduced Amount is paid, the cash payments set forth in Section 4999 10.2(a)(2) shall be reduced as required by the operation of this Section 10.4(a). (b) The accounting firm engaged by the Company for general audit purposes as of the Code on day prior to the effective date of the Change in Control shall perform any calculation necessary to determine the amount, if any, payable to Executive pursuant to this Section 10, as limited by this Section 10.4. If the accounting firm so engaged by the Company is also serving as accountant or auditor for the individual, entity or group that will control the Company following a Change in Control, the Company shall appoint a nationally recognized accounting firm other than the accounting firm engaged by the Company for general audit purposes to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such unreduced Total Payments). Any determination accounting firm required to be made under this Section hereunder. (c) The accounting firm engaged to make the determinations hereunder shall be made by independent tax counsel reasonably acceptable provide its calculations, together with detailed supporting documentation, to both the Company and Executive and within 20 calendar days after the Company, and shall be paid for date on which such accounting firm has been engaged to make such determinations or such other time as requested by the Company (“Tax Counsel”)or Executive. It is possible that, after the Any good faith determinations and selections made pursuant to the foregoing paragraph, Executive will receive payments and/or benefits that are, in the aggregate, either more or less than the amount determined under such paragraph (hereafter referred to as an “Excess Payment” or “Underpayment”, as applicable). If Tax Counsel determines that an Excess Payment has been made, then Executive shall promptly repay the Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. If Tax Counsel determines that an Underpayment has occurredaccounting firm made hereunder shall be final, binding, and conclusive upon the Company Group shall promptly (but in any event within ten (10) days of such determination) pay to Executive an amount equal to the Underpayment, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Executive had the provisions of the foregoing paragraph not been applied until the date of paymentand Executive.

Section 280G Limitation. Notwithstanding anything in this Agreement to the contrary, in the event that any payment or benefit received or to be received by Executive (all such payments and benefits being hereinafter referred to as the “"Total Payments”") would not be deductible (in whole or part) by the Company Group Employer or any affiliates making such payment or providing such benefit as a result of Section 280G of the U.S. Internal Revenue Code of 1986, as amended (the “"Code”") then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments required by any similar reduction or elimination provision contained in such other plan, arrangement or agreement), the portion of the Total Payments that does not constitute “"nonqualified deferred compensation” " under Section 409A of the Code shall first be reduced (if necessary, to zero), and all other Total Payments shall thereafter be reduced (if necessary, to zero) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first); provided, however, that such reduction shall only be made if the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under Section 4999 of the Code on such unreduced Total Payments). Any determination required to be made under this Section paragraph shall be made by independent tax counsel reasonably acceptable to both Executive and the CompanyEmployer, and shall be paid for by the Company Employer (“"Tax Counsel”"). It is possible that, after the determinations and selections made pursuant to the foregoing paragraph, Executive will receive payments and/or benefits that are, in the aggregate, either more or less than the amount determined under such paragraph (hereafter referred to as an “"Excess Payment” " or “"Underpayment”", as applicable). If Tax Counsel determines that an Excess Payment has been made, then Executive shall promptly repay the Excess Payment to the CompanyEmployer, together with interest on the Excess Payment at the applicable federal rate (as defined in section 1274(d) of the Code) from the date of Executive’s 's receipt of such Excess Payment until the date of such repayment. If Tax Counsel determines that an Underpayment has occurred, the Company Group Employer shall promptly (but in any event within ten (10) days of such determination) pay to Executive an amount equal to the Underpayment, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Executive had the provisions of the foregoing paragraph not been applied until the date of payment.

Section 280G Limitation. Notwithstanding anything in this Agreement to the contrary, in the event that any payment or benefit received or to be received by Executive Employee (all such payments and benefits being hereinafter referred to as the “"Total Payments”") would not be deductible (in whole or part) by the Company Group or any affiliates making such payment or providing such benefit as a result of Section 280G of the U.S. Internal Revenue Code of 1986, as amended (the “"Code”") then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments required by any similar reduction or elimination provision contained in such other plan, arrangement or agreement), the portion of the Total Payments that does not constitute “"nonqualified deferred compensation” " under Section 409A of the Code shall first be reduced (if necessary, to zero), and all other Total Payments shall thereafter be reduced (if necessary, to zero) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first); provided, however, that such reduction shall only be made if the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under Section 4999 of the Code on such unreduced Total Payments). Any determination required to be made under this Section paragraph shall be made by independent tax counsel reasonably acceptable to both Executive Employee and the Company, and shall be paid for by the Company (“"Tax Counsel”"). It is possible that, after the determinations and selections made pursuant to the foregoing paragraph, Executive Employee will receive payments and/or benefits that are, in the aggregate, either more or less than the amount determined under such paragraph (hereafter referred to as an “"Excess Payment” " or “"Underpayment”", as applicable). If Tax Counsel determines that an Excess Payment has been made, then Executive Employee shall promptly repay the Excess Payment to the CompanyEmployer, together with interest on the Excess Payment at the applicable federal rate (as defined in section Section 1274(d) of the Code) from the date of Executive’s Employee's receipt of such Excess Payment until the date of such repayment. If Tax Counsel determines that an Underpayment has occurred, the Company Group shall promptly (but in any event within ten (10) days of such determination) pay to Executive Employee an amount equal to the Underpayment, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Executive Employee had the provisions of the foregoing paragraph not been applied until the date of payment.