Common use of Excise Tax Limitation Clause in Contracts

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by Executive in writing delivered to the Company within ninety (90) days of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 and (B) any other compensation earned by Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in Control.

Excise Tax Limitation. (a) It is Notwithstanding anything contained in this Agreement to the intention of contrary, to the Parties extent that no portion any payment or distribution of any payment under this Agreement, or payments type to or for the benefit of the Executive under by the Company, any other agreement affiliate of the Company, any person who acquires ownership or plan, be deemed to be an Excess Parachute Payment. The present value effective control of payments to the Company or for ownership of a substantial portion of the benefit Company's assets (within the meaning of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in of the aggregate “Total Payments”) shall not exceed an amount equal Internal Revenue Code of 1986, as amended the Code, and the regulations thereunder), or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes terms of this Agreement shall or otherwise (the "Total Payments") is or will be calculated in accordance with Code subject to the excise tax imposed under Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving 4999 of the notice of termination or Code (ii) the giving of notice by the Company to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280G"Excise Tax"), (B) then the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by Executive in writing delivered (but not below zero) if and to the Company within ninety extent that a reduction in the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (90) days of Executive’s receipt taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such opinions orTotal Payments. The Company shall reduce or eliminate the Total Payments, if by reducing or eliminating the portion of the Total Payments payable to the Executive fails under Section 7.5.2. In no event will the Executive be required to so notify forfeit any equity (restricted stock or stock options) distributable or payable under the Companyterms of this Agreement. If after eliminating the portion of the Total Payments payable to the Executive under Section 7.5.2, the remaining amount of the Total Payments is or will be subject to the Excise Tax, then as the Company Executive shall reasonably determine, so be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that under after payment by the bases Executive of calculation set forth in all taxes (including any interest or penalties imposed with respect to such opinions there will be no Excess Parachute Payment. The provisions of this Section 6taxes), including the calculationsand Excise Tax, notices and opinion provided for herein, shall be based imposed upon the conclusive presumption that (A) Gross-Up Payment, the compensation and benefits provided for in Section 3 and (B) any other compensation earned by Executive pursuant retains an amount of the Gross-Up Payment equal to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though Excise Tax imposed on the timing of such payment may be triggered by a Change in ControlTotal Payments.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 4 and (B) any other compensation earned by the Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in Control.

Excise Tax Limitation. (a) It is the intention of the Parties Employer and the Executive that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an “Excess Parachute Payment” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or its successors. The It is agreed that the present value of and payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change in of Control, and to which Code Section 280G of the Code applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that which the Company Employer may pay without loss of deduction under Code Section 280G(a)) of the Code. Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4)) of the Code. Within one hundred and twenty (120) days following the earlier of (iA) the giving of the notice of termination or (iiB) the giving of notice by the Company Employer to the Executive of its belief that there is a payment or benefit due the Executive that which will result in an Excess Parachute Payment, the PartiesExecutive and the Employer, at the CompanyEmployer’s expense, shall obtain the opinion of an Independent AdvisorAdvisor (as defined below), which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” Base Amount (as defined under Code Section 280GG of the Code), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, eliminated as specified by Executive in writing delivered to the Company within ninety (90) days of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company Parties shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment; provided that any such modification, reduction or elimination must be in accordance with Section 409A of the Code. The provisions of this Section 67, including the calculations, notices and opinion opinions provided for herein, herein shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 5 hereof and (B) any other compensation earned by the Executive pursuant to the CompanyEmployer’s compensation programs that which would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be is triggered by a the Change in of Control. In the event that the provisions of Sections 280G and 4999 of the Code are repealed without succession, this Section 7 shall be of no further force or effect.

Excise Tax Limitation. 6.11.1 Notwithstanding anything contained in this Agreement to the contrary, (ai) It is in the intention event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Parties Code) to be paid or made payable to Executive or for Executive’s benefit pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, Executive’s employment with the Company or any of its Subsidiaries on a “change of control” within the meaning of Section 280G of the Code (a “Payment” or “Payments”) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), and (ii) (A) the net amount of the Payments Executive would retain after payment of the Excise Tax and federal, state and local income taxes on the Payments would be less than (B) the net amount of the Payments Executive would retain, after payment of the Excise Tax and federal, state and local income taxes on the Payments, if the Payments were reduced to the extent necessary that no portion of any payment under this Agreement, or payments the Payments would be subject to or for the benefit of Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for Excise Tax (the benefit of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code “Section 280G applies (in the aggregate “Total Payments4999 Limit”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280G), (B) then the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modifiedreduced (but not below zero) to the Section 4999 Limit. If a reduction in the Payments is necessary so that the Payments do not exceed the Section 4999 Limit and none of the Payments constitute non-qualified deferred compensation (within the meaning of Section 409A of the Code), reduced or eliminated, then the reduction shall occur in accordance with Code Section 409A, as specified by the manner Executive elects in writing delivered prior to the Company within ninety (90) days date of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Paymentpayment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 and (B) any other compensation earned Any notice given by Executive pursuant to the Companypreceding sentence shall take precedence over the provisions of any other agreement, plan or arrangement governing Executive’s rights and entitlements to any benefits or compensation. If any Payment constitutes non-qualified deferred compensation programs that or if Executive fails to elect an order, then the Payments to be reduced will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been paid in made to Executive, until the reduction is achieved. For purposes of the calculations described above, it shall be assumed that Executive’s tax rate will be the maximum marginal federal and applicable state income tax rate on earned income (taking into account the deductibility of any event, are reasonable compensation state taxes for services rendered, even though the timing purposes of such payment may be triggered by a Change in Controlcalculating any federal taxes).

Excise Tax Limitation. (a) It is the intention of the Parties Company and the Executive that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an “Excess Parachute Payment” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or its successors. The It is agreed that the present value of and payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a the Change in of Control, and to which Code Section 280G of the Code applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that which the Company may pay without loss of deduction under Code Section 280G(a)) of the Code. Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4)) of the Code. Within one hundred and twenty (120) days following the earlier of (iA) the giving of the notice of termination or (iiB) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that which will result in an Excess Parachute Paymentexcess parachute payment as defined in Section 280G of the Code, the PartiesExecutive and the Company, at the Company’s expense, shall obtain the opinion of an Independent AdvisorAdvisor (as defined below), which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” Base Amount (as defined under Code Section 280GG of the Code), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Paymentsexcess parachute payments. In the event that such opinion determines that there would be an Excess Parachute Paymentexcess parachute payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, eliminated as specified by the Executive in writing delivered to the Company within ninety (90) days of Executive’s his receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Paymentexcess parachute payment. The provisions of this Section 6Section, including the calculations, notices and opinion provided for herein, herein shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 5 hereof and (B) any other compensation earned by the Executive pursuant to the Company’s compensation programs that which would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be is triggered by a the Change in of Control. In the event that the provisions of Sections 280G and 4999 of the Code are repealed without succession, this Section shall be of no further force or effect.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s 's expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s 's applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s 's receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 4 and (B) any other compensation earned by the Executive pursuant to the Company’s 's compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in Control.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by Executive in writing delivered to the Company within ninety (90) days of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 2 and (B) any other compensation earned by Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in Control.

Excise Tax Limitation. (a) A. It is the intention of the Parties Company and the Employee that no portion of any payment under this Agreement, or payments to or for the benefit of Executive the Employee under any other agreement or plan, be deemed to be an “Excess Parachute Payment” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or its successors. The It is agreed that the present value of and payments to or for the benefit of Executive the Employee in the nature of compensation, receipt of which is contingent on a the Change in of Control, and to which Code Section 280G of the Code applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that which the Company may pay without loss of deduction under Code Section 280G(a)) of the Code. Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4)) of the Code. Within one hundred and twenty (120) days following the earlier of (iA) the giving of the notice of termination or (iiB) the giving of notice by the Company to Executive the Employee of its belief that there is a payment or benefit due Executive that the Employee which will result in an Excess Parachute Paymentexcess parachute payment as defined in Section 280G of the Code, the PartiesEmployee and the Company, at the Company’s 's expense, shall obtain the opinion of an Independent AdvisorAdvisor (as defined below), which opinion need not be unqualified, which sets forth (A) Executive’s the Employee's applicable “base amount” Base Amount (as defined under Code Section 280GG of the Code), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Paymentsexcess parachute payments. In the event that such opinion determines that there would be an Excess Parachute Paymentexcess parachute payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, eliminated as specified by Executive the Employee in writing delivered to the Company within ninety (90) days of Executive’s his receipt of such opinions or, if Executive the Employee fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Paymentexcess parachute payment. The provisions of this Section 6paragraph, including the calculations, notices and opinion provided for herein, herein shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 2.B hereof and (B) any other compensation earned by Executive the Employee pursuant to the Company’s 's compensation programs that which would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be is triggered by a the Change in of Control. In the event that the provisions of Sections 280G and 4999 of the Code are repealed without succession, this paragraph shall be of no further force or effect.

Excise Tax Limitation. (a) A. It is the intention of the Parties Company and the Employee that no portion of any payment under this Agreement, or payments to or for the benefit of Executive the Employee under any other agreement or plan, be deemed to be an “Excess Parachute Payment” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or its successors. The It is agreed that the present value of and payments to or for the benefit of Executive the Employee in the nature of compensation, receipt of which is contingent on a the Change in of Control, and to which Code Section 280G of the Code applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that which the Company may pay without loss of deduction under Code Section 280G(a)) of the Code. Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4)) of the Code. Within one hundred and twenty (120) days following the earlier of (iA) the giving of the notice of termination or (iiB) the giving of notice by the Company to Executive the Employee of its belief that there is a payment or benefit due Executive that the Employee which will result in an Excess Parachute Paymentexcess parachute payment as defined in Section 280G of the Code, the PartiesEmployee and the Company, at the Company’s expense, shall obtain the opinion of an Independent AdvisorAdvisor (as defined below), which opinion need not be unqualified, which sets forth (A) Executivethe Employee’s applicable “base amount” Base Amount (as defined under Code Section 280GG of the Code), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Paymentsexcess parachute payments. In the event that such opinion determines that there would be an Excess Parachute Paymentexcess parachute payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, eliminated as specified by Executive the Employee in writing delivered to the Company within ninety (90) days of Executive’s his receipt of such opinions or, if Executive the Employee fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Paymentexcess parachute payment. The provisions of this Section 6paragraph, including the calculations, notices and opinion provided for herein, herein shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 2.B hereof and (B) any other compensation earned by Executive the Employee pursuant to the Company’s compensation programs that which would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be is triggered by a the Change in of Control. In the event that the provisions of Sections 280G and 4999 of the Code are repealed without succession, this paragraph shall be of no further force or effect.

Excise Tax Limitation. (a) It is Notwithstanding anything to the intention of the Parties that no portion of any payment under contrary contained in this Agreement, or if the payments to and benefits provided under this Agreement and benefits provided to, or for the benefit of Executive of, the Employee under any other Company plan or agreement (such payments or plan, be deemed benefits are collectively referred to be an Excess Parachute Payment. The present value of payments to or for as the benefit of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal would be subject to one dollar the excise tax ($1.00the “Excise Tax”) less than imposed under Section 4999 of the maximum amount that Code, the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement Payments shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following reduced to the earlier Limited Payment Amount of the greater of (i) the giving largest amount of Payments that would result in no portion of the notice of termination Payments being subject to the Excise Tax, or (ii) the giving largest amount of Payments, up to and including 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), that results in the Employee’s receipt, on an after-tax basis, of the greater amount of Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. The intent of the foregoing provision is to reduce the Payments only in the event and to the extent that doing so will maximize the net present value of the Payments, on an after-tax basis, to be received by the Employee. Unless the Employee shall have given prior written notice by specifying a different order to the Company to Executive of its belief that there is a payment or benefit due Executive that will result effectuate any reduction in an Excess Parachute PaymentPayments, the PartiesCompany shall reduce or eliminate the Payments by first reducing or eliminating the portion of the Payments which are not payable in cash and then by reducing or eliminating cash payments, at in each case in reverse order beginning with payments or benefits which are to be paid the Company’s expense, shall obtain farthest in time from the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” Determination (as defined under Code Section 280Gbelow), (B) . Any notice given by the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by Executive in writing delivered to the Company within ninety (90) days of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 and (B) any other compensation earned by Executive Employee pursuant to the Companypreceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Employee’s compensation programs that would have been paid in rights and entitlements to any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in Controlbenefits or compensation.

Excise Tax Limitation. (a) It is Notwithstanding anything contained in this Agreement to the intention of contrary, to the Parties extent that no portion of any payment the payments and benefits provided under this AgreementAgreement and benefits provided to, or payments to or for the benefit of of, the Executive under any other Company plan or agreement (such payments or plan, be deemed benefits are collectively referred to be an Excess Parachute Payment. The present value of payments to or for as the benefit of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Payments shall be reduced (but not exceed an below zero) if and to the extent necessary so that no Payment to be made or benefit to be provided to Executive shall be subject to the Excise Tax (such reduced amount equal is hereinafter referred to one dollar ($1.00) less than as the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a“Limited Payment Amount”). Present value for purposes of this Agreement Unless the Executive shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the have given prior written notice of termination or (ii) the giving of notice by specifying a different order to the Company to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Paymenteffectuate the foregoing, the PartiesCompany shall reduce or eliminate the Payments, by first reducing or eliminating the portion of the Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as hereinafter defined). Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. The determination of whether the Payments shall be reduced to the Limited Payment Amount pursuant to this Agreement and the amount of such Limited Payment Amount shall be made, at the Company’s expense, by a reputable accounting firm selected by the Executive and reasonably acceptable to the Company (the “Accounting Firm”). The Accounting Firm shall obtain provide its determination (the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280GDetermination”), together with detailed supporting calculations and documentation, to the Company and the Executive within ten (B10) days after the present value end of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that Term hereof, if applicable, or such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, time as specified by mutual agreement of the Company and the Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive in writing delivered with respect to the Company within ninety (90) days of Executive’s receipt of Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such opinions orPayments. The Determination shall be binding, if Executive fails to so notify the Company, then as final and conclusive upon the Company shall reasonably determine, so that under and the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 and (B) any other compensation earned by Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in ControlExecutive.

Excise Tax Limitation. (a) It is the intention of the Parties Bank and the Employee that no portion of any payment under this Agreement, or payments to or for the benefit of Executive the Employee under any other agreement or plan, be deemed to be an “Excess Parachute Payment” as defined in Code Section 280G, or its successors. The It is agreed that the present value of payments to or for the benefit of Executive the Employee in the nature of compensation, receipt of which is contingent on a the Change in of Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that which the Company Bank may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred and twenty (120) days following the earlier of (iA) the giving of the notice of termination or (iiB) the giving of notice by the Company Bank to Executive the Employee of its belief that there is a payment or benefit due Executive that the Employee which will result in an Excess Parachute Paymentexcess parachute payment as defined in Code Section 280G, the PartiesEmployee and the Bank, at the CompanyBank’s expense, shall obtain the opinion of an Independent AdvisorAdvisor (as defined below), which opinion need not be unqualified, which sets forth (A) Executivethe Employee’s applicable “base amount” Base Amount (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Paymentsexcess parachute payments. In the event that such opinion determines that there would be an Excess Parachute Paymentexcess parachute payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, eliminated as specified by Executive in writing the Bank delivered to the Company Employee within ninety (90) days of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determineopinion, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. excess parachute payment and such adjustment shall be consistent with the rules under Code Section 409A. The provisions of this Section 6Section, including the calculations, notices and opinion provided for herein, herein shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 6 hereof and (B) any other compensation earned by Executive the Employee pursuant to the CompanyBank’s compensation programs that which would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be is triggered by a the Change in of Control. In the event that the provisions of Code Sections 280G and 4999 are repealed without succession, this Section shall be of no further force or effect.

Excise Tax Limitation. (a) It is Notwithstanding anything in this Agreement to the intention of the Parties that no contrary, if any portion of any payment payments to Executive by the Company under this Agreement, or payments to or for the benefit of Executive under Agreement and any other present or future plan of the Company or other present or future agreement or planbetween Executive and the Company would not be deductible by the Company (collectively, "Payments") for federal income tax purposes by reason of application of Section 162(m) of the Internal Revenue Code (the "Code"), then payment of that portion to Executive shall be deemed deferred until the earliest date upon which payment thereof can be made to be an Excess Parachute PaymentExecutive without being non-deductible pursuant to Section 162(m) of the Code. The In the event of such deferral, the Company shall pay interest to Executive on the deferred amount at 120% of the applicable federal rate provided for in Section 1274(d)(1) of the Code. In addition, notwithstanding any provision of this Agreement to the contrary, the aggregate present value of the payments to or for the benefit of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which benefits (excluding those payments and benefits not treated as parachute payments under Code Section 280G applies 2BOG(b)) to be made or provided to the Executive by the Company (in the aggregate “Total Payments”whether pursuant to this Agreement or otherwise) shall not exceed an amount equal to three times the Executive's annualized includible compensation for the base period, as defined in Code Section 28OG(d) of the Code, minus one dollar ($$ 1.00) less than (the maximum amount "Limited Payment Amount "), and any excess payments or benefits shall be forfeited; provided, however, that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes forfeiture provision of this Agreement sentence shall be calculated apply only if such forfeiture provision results in accordance with Code Section 280G(d)(4)larger aggregate after-tax payments and benefits to the Executive than if the forfeiture provision did not apply. Within one hundred twenty (120) days following the earlier The intent of (i) the giving this portion of the notice of termination or (ii) the giving of notice by the Company this is to Executive of its belief that there is a prevent any payment or benefit due to the Executive that will from being subject to the excise tax imposed by Code Section 4999 and to prevent any item of expense or deduction of the Company from being disallowed as a result in an Excess Parachute Payment, of the Parties, at the Company’s expense, shall obtain the opinion application of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280G), but only if the after-tax payments and benefits payable or provided to the Executive are greater after application of the forfeiture provision than if the forfeiture provision did not apply. The interpretation of this subsection 5 (Ba) its application to any occurrence or event, the determination of whether any payment or benefit would not be treated as a parachute payment, the determination of the aggregate present value of Total Payments all payments and (C) benefits to be made or provided to the amount and present Executive, the determination of the value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder payments and benefits payable or any other payment determined by such Independent Advisor to be includable in Total Payments provided to the Executive after reduction for all applicable taxes, and what specific payments or benefits otherwise available to the Executive shall be modified, reduced limited or eliminated, in accordance with Code Section 409A, as specified eliminated by Executive in writing delivered to operation of this shall be reasonably made by the Company within ninety (90) days of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 and (B) any other compensation earned by Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in Controlbinding on all persons.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by Executive in writing delivered to the Company within ninety (90) days of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 65, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 under this Agreement and (B) any other compensation earned by Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in Control.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 67, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 5 and (B) any other compensation earned by the Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in Control.

Excise Tax Limitation. (a) It is Anything in this Agreement to the intention of contrary notwithstanding, in the Parties event that no portion of any payment under amount or benefit paid or distributed to the Employee pursuant to this Agreement, taken together with any amounts or payments benefits otherwise paid or distributed to the Employee by the Company or for the benefit of Executive any Affiliate under any other agreement or plan, agreement, or arrangement that would be deemed to be taken into account for purposes of determining if an Excess Parachute Payment. The present value of payments to or for the benefit of Executive “excess parachute payment” as defined in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies of the Internal Revenue Code of 1986, as amended, has been made (collectively, the “Covered Payments”), would be an “excess parachute payment” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code) , and would thereby subject the Employee to the tax (the, “Excise Tax”) imposed under Section 4999 of the Code (or any similar tax that may hereafter be imposed), the Company shall pay to the Employee an additional amount (the “Tax Reimbursement Payment”) such that the net amount retained by the Employee with respect to such Covered Payments, after deduction of any Excise Tax on the Covered Payments and Excise Tax on the Tax Reimbursement Payment provided for by this Section 4(a), shall be equal to the aggregate “Total value of the Covered Payments”) shall not exceed an amount equal to one dollar ($1.00) less than ; provided, however, that if the aggregate value of all Covered Payments exceeds the maximum amount that which can be paid to the Company may pay Employee without loss the Employee incurring an Excise Tax (the “Cap Amount”) by less than ten per cent (10%) of deduction the Cap Amount, the amounts payable to the Employee under Code this Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4reduced (but not below zero) to the maximum amount which may be paid hereunder without the Employee becoming subject to such an Excise Tax as a result of all Covered Payments (such reduced payments to be referred to as the “Payment Cap”). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute PaymentEmployee receives reduced payments and benefits hereunder, the payment hereunder or any other payment determined by such Independent Advisor Employee shall have the right to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by Executive in writing delivered to designate which of the Company within ninety (90) days of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation payments and benefits otherwise provided for in Section 3 and (B) any other compensation earned by Executive pursuant to this Agreement that he/she will receive in connection with the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though application of the timing of such payment may be triggered by a Change in ControlPayment Cap.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change in of Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 65, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 under this Agreement and (B) any other compensation earned by the Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in of Control.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by Executive in writing delivered to the Company within ninety (90) days of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 4 and (B) any other compensation earned by Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in Control.

Excise Tax Limitation. In the event it should be determined (ain the manner set forth below) It is the intention of the Parties that no portion any payment or distribution of any payment under this Agreement, or payments type to or for the benefit of Executive under made by the Employer, any other agreement person who acquires ownership or plan, be deemed to be an Excess Parachute Payment. The present value effective control of payments to the Company or for ownership of a substantial portion of the benefit Company’s assets in connection with a “change in control” (within the meaning of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies and the regulations thereunder) or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (in the aggregate “Total Payments”) shall not ), would otherwise exceed an amount equal to one dollar ($1.00) less than the maximum amount that could be received by Executive without the Company may pay without loss imposition of deduction an excise tax under Code Section 280G(a4999 (the “Safe Harbor Amount”). Present value for purposes of this Agreement , then the Total Payments shall be calculated reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance with the applicable provisions of Code Section 280G(d)(4). Within one hundred twenty (120) days following 280G and the earlier regulations thereunder, does not exceed the greater of (i) the giving of the notice of termination Safe Harbor Amount, or (ii) the giving of notice by the Company greatest after-tax amount payable to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined after taking into account any excise tax imposed under Code Section 280G4999 on the Total Payments (such greater amount of (i) or (ii), the “Benefit Limit”). All determinations under this Section 6 shall be made by an independent registered public accounting firm selected by the Employer and Executive from among the largest four accounting firms in the United States and paid for by the Employer (B) the present value of “Accounting Firm”). If a reduction in payments or benefits is necessary so that the Total Payments and (C) do not exceed the amount and present value Benefit Limit, reduction shall occur in the following order: reduction of any Excess Parachute Paymentscash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor accelerated vesting of stock awards is to be includable in Total Payments reduced, such accelerated vesting shall be modified, reduced or eliminated, cancelled in accordance with Code Section 409A, as specified by Executive in writing delivered to the Company within ninety (90) days reverse order of the grant date of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Paymentstock awards. The provisions of this Section 65, including the calculations, notices notices, and opinion opinions provided for herein, herein shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 this Agreement and (B) any other compensation earned by Executive pursuant to the CompanyEmployer’s compensation programs that would have been paid provided in any event, event are reasonable compensation for services rendered, even though the timing of such payment may be is triggered by a the Change in Control.; provided, however, that if such Accounting Firm so requests in connection with the opinion required by this Section 5, Executive and the Employer shall obtain, at the Employer’s expense, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by Executive. The Executive shall receive a copy of all final written reports and/or opinions issued by the Accounting Firm or executive compensation consultants engaged hereunder. Any modification, reduction or elimination of payments necessary to accomplish the foregoing shall be done in accordance with applicable provisions of Code Section 409A.

Excise Tax Limitation. (a) It is Notwithstanding anything in this Agreement to the intention contrary, in the event it shall be determined that any payment or distribution by the Company to or for your benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a "Payment") would be nondeductible by the Company for federal income tax purposes because of Section 280G of the Parties that no portion Code, then the aggregate present value of amounts payable or distributable to you or for your benefit pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Total Payments") shall be reduced to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Total Payments without causing any payment Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 6, present value shall be determined in accordance with Section 280G(d)(4) of the Code. (b) All determinations required to be made under this AgreementSection 6 shall be made by the Company's independent public accountants (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the employee. Any such determination by the Accounting Firm shall be binding upon the Company and the employee. (c) 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 payments that the additional Payments which will not have been made by the Company 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 employee 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 Executive under any other agreement or planthe employee shall be treated for all purposes as a loan ab initio to the employee which the employee 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 by the employee to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which the employee 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 Excess Parachute Payment. The present value of payments Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance employee together with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, interest at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by Executive in writing delivered to the Company within ninety (90) days of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits federal rate provided for in Section 3 and (B7872(f)(2) any other compensation earned by Executive pursuant to of the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in ControlCode.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by Executive in writing delivered to the Company within ninety (90) days of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 6, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 and (B) any other compensation earned by Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in Control. (b) The Parties hereby recognize that the restrictive covenants under Section 7 have value that is equivalent in amount to some or all of the Severance Amount (and potentially other termination benefits) and that such value shall be recognized in the Code Section 280G calculations contemplated hereunder. The Independent Advisor shall make the determination of the actual fair market value of the restrictive covenants under Section 7 at the time of the Change in Control. 7.

Excise Tax Limitation. In the event it should be determined (ain the manner set forth below) It is the intention of the Parties that no portion any payment or distribution of any payment under this Agreement, or payments type to or for the benefit of Executive under made by the Bank (referred to in this paragraph (c) as the “Employer”), any other agreement person who acquires ownership or plan, be deemed to be an Excess Parachute Payment. The present value effective control of payments to the Company or for ownership of a substantial portion of the benefit Company’s assets in connection with a “change in control” (within the meaning of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies and the regulations thereunder) or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (in the aggregate “Total Payments”) shall not ), would otherwise exceed an amount equal to one dollar ($1.00) less than the maximum amount that could be received by Executive without the Company may pay without loss imposition of deduction an excise tax under Code Section 280G(a4999 (the “Safe Harbor Amount”). Present value for purposes of this Agreement , then the Total Payments shall be calculated reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance with the applicable provisions of Code Section 280G(d)(4). Within one hundred twenty (120) days following 280G and the earlier regulations thereunder, does not exceed the greater of (i) the giving of the notice of termination Safe Harbor Amount, or (ii) the giving of notice by the Company greatest after-tax amount payable to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined after taking into account any excise tax imposed under Code Section 280G4999 on the Total Payments (such greater amount of (i) or (ii), the “Benefit Limit”). All determinations under this Section 6 shall be made by an independent compensation consultant, law firm or independent registered public accounting firm selected by the Employer and Executive (B) the present value of “Advisor”). If a reduction in payments or benefits is necessary so that the Total Payments and (C) do not exceed the amount and present value Benefit Limit, reduction shall occur in the following order: reduction of any Excess Parachute Paymentscash payments; cancellation of accelerated vesting of equity awards; reduction of employee benefits. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor accelerated vesting of equity awards is to be includable in Total Payments reduced, such accelerated vesting shall be modified, reduced or eliminated, cancelled in accordance with Code Section 409A, as specified by Executive in writing delivered to the Company within ninety (90) days reverse order of the grant date of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Paymentequity awards. The provisions of this Section 65, including the calculations, notices notices, and opinion opinions provided for herein, herein shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 this Agreement and (B) any other compensation earned by Executive pursuant to the CompanyEmployer’s compensation programs that would have been paid provided in any event, event are reasonable compensation for services rendered, even though the timing of such payment may be is triggered by a the Change in Control.; provided, however, that if such Advisor so requests in connection with the opinion required by this Section 5, Executive and the Employer shall obtain, at the Employer’s expense, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by Executive. The Executive shall receive a copy of all final written reports and/or opinions issued by the Advisor or executive compensation consultants engaged hereunder. Any modification, reduction or elimination of payments necessary to accomplish the foregoing shall be done in accordance with applicable provisions of Code Section 409A.

Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change in of Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s 's expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s 's applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s 's receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 65, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 under this Agreement and (B) any other compensation earned by the Executive pursuant to the Company’s 's compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in of Control.

Excise Tax Limitation. In the event it should be determined (ain the manner set forth below) It is the intention of the Parties that no portion any payment or distribution of any payment under this Agreement, or payments type to or for the benefit of Executive under made by the Employer, any other agreement person who acquires ownership or plan, be deemed to be an Excess Parachute Payment. The present value effective control of payments to the Company or for ownership of a substantial portion of the benefit Company’s assets in connection with a “change in control” (within the meaning of Executive in the nature of compensation, receipt of which is contingent on a Change in Control, and to which Code Section 280G applies and the regulations thereunder) or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (in the aggregate “Total Payments”) shall not ), would otherwise exceed an amount equal to one dollar ($1.00) less than the maximum amount that could be received by Executive without the Company may pay without loss imposition of deduction an excise tax under Code Section 280G(a4999 (the “Safe Harbor Amount”). Present value for purposes of this Agreement , then the Total Payments shall be calculated reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance with the applicable provisions of Code Section 280G(d)(4). Within one hundred twenty (120) days following 280G and the earlier regulations thereunder, does not exceed the greater of (i) the giving of the notice of termination Safe Harbor Amount, or (ii) the giving of notice by the Company greatest after-tax amount payable to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined after taking into account any excise tax imposed under Code Section 280G4999 on the Total Payments (such greater amount of (i) or (ii), the “Benefit Limit”). All determinations under this Section 5 shall be made by an independent compensation consultant, law firm or independent registered public accounting firm selected by the Employer and Executive (B) the present value of “Advisor”). If a reduction in payments or benefits is necessary so that the Total Payments and (C) do not exceed the amount and present value Benefit Limit, reduction shall occur in the following order: reduction of any Excess Parachute Paymentscash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor accelerated vesting of stock awards is to be includable in Total Payments reduced, such accelerated vesting shall be modified, reduced or eliminated, cancelled in accordance with Code Section 409A, as specified by Executive in writing delivered to the Company within ninety (90) days reverse order of the grant date of Executive’s receipt of such opinions or, if Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Paymentstock awards. The provisions of this Section 65, including the calculations, notices notices, and opinion opinions provided for herein, herein shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 this Agreement and (B) any other compensation earned by Executive pursuant to the CompanyEmployer’s compensation programs that would have been paid provided in any event, event are reasonable compensation for services rendered, even though the timing of such payment may be is triggered by a the Change in Control.; provided, however, that if such Advisor so requests in connection with the opinion required by this Section 5, Executive and the Employer shall obtain, at the Employer’s expense, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by Executive. The Executive shall receive a copy of all final written reports and/or opinions issued by the Advisor engaged hereunder. Any modification, reduction or elimination of payments necessary to accomplish the foregoing shall be done in accordance with applicable provisions of Code Section 409A.

Excise Tax Limitation. (a) It is Notwithstanding anything contained in this Agreement to the intention of the Parties that no portion of any payment under this Agreementcontrary, if upon or payments to or for the benefit of Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of Executive in the nature of compensation, receipt of which is contingent on following a Change in Control, the tax imposed by Section 4999 of the Code or any similar or successor tax (the “Excise Tax”) applies, solely because of the Change in Control, to any payments, benefits and/or amounts received by the Executive as Severance Benefits or otherwise, including, without limitation, any fees, costs and expenses paid under Article 9 of this Agreement and/or any amounts received or deemed received, within the meaning of any provision of the Code, by the Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to which Code Section 280G applies outstanding grants or awards to the Executive under any of the Company’s incentive plans, including without limitation, the 2001 Long-Term Incentive Stock Plan and the 1993 Long Term Incentive Stock Plan (in collectively, the aggregate “Total Payments”), then the Total Payments shall be reduced (but not below zero) so that the maximum amount of the Total Payments (after reduction) shall not exceed an amount equal to be one dollar ($1.00) less than the maximum amount that which would cause the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to Executive of its belief that there is a payment or benefit due Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) to be subject to the amount and present value of any Excess Parachute Payments. In the event Excise Tax; provided that such opinion determines that there would be an Excess Parachute Payment, reduction to the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by Executive in writing delivered made only if the total after-tax benefit to the Company within ninety (90) days of Executive’s receipt of Executive is greater after giving effect to such opinions orreduction than if no such reduction had been made. If such a reduction is required, if Executive fails to so notify the Company, then as the Company shall reasonably determinereduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits, so that under then by reducing or eliminating any accelerated vesting of stock options, then by reducing or eliminating any accelerated vesting of other equity awards, then by reducing or eliminating any other remaining Total Payments, in each case in reverse order beginning with the bases of calculation set forth payments which are to be paid the farthest in such opinions there will be no Excess Parachute Paymenttime from the Change in Control. The preceding provisions of this Section 6, including Article 6 shall take precedence over the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for in Section 3 and (B) provisions of any other compensation earned by Executive pursuant plan, arrangement or agreement governing the Executive’s rights and entitlements to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change in Controlbenefits or compensation.