Common use of Limitation on Change in Control Payments Clause in Contracts

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement to the contrary, in the event that it is determined by an independent accounting firm chosen by mutual agreement of the parties (the “Accounting Firm”) that any economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if Executive’s Agreement Payments were reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the tax year in which the CIC Date occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be made.

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement to the contrary, in if, with respect to the event that it is determined by an independent accounting firm chosen by mutual agreement Recipient, the acceleration of the parties vesting of Restricted Shares as provided in Section 2 of this Agreement (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Accounting FirmCode”) that )), together with any economic benefit, payment or distribution by other payments which the Recipient has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to or for Section 1504(b) of the benefit Code) of Executivewhich the Company is a member, whether paidwould constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), payable, distributed or distributable pursuant then the “payments” to the terms Recipient will be reduced to the largest amount as will result in no portion of this Agreement or otherwise (a such “Payment”), would be payments” being subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986Code. Without limiting the prior sentence, as amended (and the applicable regulations thereunder) (Recipient will have the discretion to determine which “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that no portion of such “payments” are subject to the present value excise tax imposed by Section 4999 of all Payments (calculated the Code. Notwithstanding anything to the contrary in accordance this Section 9, if the Recipient is subject to a separate agreement with the Company that expressly addresses the potential application of Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) or 4999 of the Code (the including, without limitation, that “Reduced Amount”). Notwithstanding the foregoingpayments” under such agreement or otherwise will be reduced, the Agreement Payments shall that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 9 will not apply, and any “payments” to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater Recipient pursuant to Section 2 of this Agreement will be treated as “Net After-Tax Receiptpayments” (as defined below) of aggregate Payments if Executive’s Agreement Payments were reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto arising under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the tax year in which the CIC Date occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be madeseparate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement Section 3.3 to the contrary, in if, with respect to the event that it is determined by an independent accounting firm chosen by mutual agreement Optionee, the acceleration of the parties vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other “payments” that the Optionee has the right to receive from the Company or any corporation that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the “Accounting Firm”) that any economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant payments” to the terms Optionee as set forth herein will be reduced to the largest amount as will result in no portion of this Agreement or otherwise (a such “Payment”), would be payments” being subject to the excise tax imposed by Section 4999 of the Internal Revenue Code Code; provided, that such reduction shall be made only if the aggregate amount of 1986, as amended the payments after such reduction exceeds the difference between (and A) the applicable regulations thereunderamount of such payments absent such reduction minus (B) (the “Code”) (such aggregate amount of the excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” imposed under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G 4999 of the Code and attributable to any such excess parachute payments. Notwithstanding the regulations thereunder)foregoing sentence, in if the aggregate, Optionee is equal subject to 2.99 times Executive’s “base amount,” within a separate agreement with the meaning Company or a Subsidiary that expressly addresses the potential application of Section 280G(b)(3) Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “Reduced Amount”). Notwithstanding the foregoingpayments” will be reduced, the Agreement Payments shall that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any “payments” to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater Optionee as provided herein will be treated as “Net After-Tax Receiptpayments” (as defined below) of aggregate Payments if Executive’s Agreement Payments were reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto arising under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the tax year in which the CIC Date occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be madeseparate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement Section 3.3 to the contrary, in if, with respect to the event that it is determined by an independent accounting firm chosen by mutual agreement Optionee, the acceleration of the parties vesting of the Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other “payments” that the Optionee has the right to receive from the Company or any corporation that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the “Accounting Firm”) that any economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant payments” to the terms Optionee as set forth herein will be reduced to the largest amount as will result in no portion of this Agreement or otherwise (a such “Payment”), would be payments” being subject to the excise tax imposed by Section 4999 of the Internal Revenue Code Code; provided, that such reduction shall be made only if the aggregate amount of 1986, as amended the payments after such reduction exceeds the difference between (and A) the applicable regulations thereunderamount of such payments absent such reduction minus (B) (the “Code”) (such aggregate amount of the excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” imposed under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G 4999 of the Code and attributable to any such excess parachute payments. Notwithstanding the regulations thereunder)foregoing sentence, in if the aggregate, Optionee is equal subject to 2.99 times Executive’s “base amount,” within a separate agreement with the meaning Company or a Subsidiary that expressly addresses the potential application of Section 280G(b)(3) Sections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “Reduced Amount”). Notwithstanding the foregoingpayments” will be reduced, the Agreement Payments shall that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any “payments” to the Reduced Amount only Optionee as provided herein will be treated as “payments” arising under such separate agreement; provided, however, such separate agreement may not modify the time or form of payment under any Incentive Award that constitutes deferred compensation subject to Section 409A of the Code if the Accounting Firm determines that Executive modification would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if Executive’s Agreement Payments were reduced cause such Incentive Award to become subject to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined adverse tax consequences specified in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) 409A of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the tax year in which the CIC Date occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be made.

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement Section 3(c) to the contrary, in if, with respect to the event that it is determined by an independent accounting firm chosen by mutual agreement Optionee, the acceleration of the parties vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a "payment" within the “Accounting Firm”meaning of Section 280G(b)(2) that of the Code), together with any economic benefit, payment or distribution by other "payments" which the Optionee has the right to receive from the Company or any corporation which is a member of an "affiliated group" (as defined in Section 1504(a) of the Code without regard to or for Section 1504(b) of the benefit Code) of Executivewhich the Company is a member, whether paidwould constitute a "parachute payment" (as defined in Section 280G(b)(2) of the Code), payable, distributed or distributable pursuant then the "payments" to the terms Optionee as set forth herein will be reduced to the largest amount as will result in no portion of this Agreement or otherwise (a “Payment”), would be such "payments" being subject to the excise tax imposed by Section 4999 of the Internal Revenue Code Code; provided, that such reduction shall be made only if the aggregate amount of 1986, as amended the payments after such reduction exceeds the difference between (and A) the applicable regulations thereunderamount of such payments absent such reduction minus (B) (the “Code”) (such aggregate amount of the excise tax referred imposed under Section 4999 of the Code attributable to in this Agreement as any such excess parachute payment. Notwithstanding the “Excise Tax”foregoing sentence, if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that "payments" under such agreement or otherwise will not be reduced or that the Optionee will have the discretion to determine which "payments" will be reduced, that such "payments" will not be reduced or that such "payments" will be "grossed up" for tax purposes), then the value limitations of this Section 3(c)(ii) will, to that extent, not apply, and any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute "payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, " will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (treated as defined below) of aggregate Payments if Executive’s Agreement Payments were reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto "payments" arising under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the tax year in which the CIC Date occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be madeseparate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement to the contrary, in the event that it is determined by an independent accounting firm chosen by mutual agreement of the parties (the “Accounting Firm”) that any economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the tax year in which the CIC Date occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be made.. Xxx X. Xxxxxxxx Employment Agreement

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement any provision to the contrarycontrary contained herein, if any acceleration of the exercisability of the Option (which acceleration could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), either alone or together with other payments in the event nature of compensation to the Optionee that it is determined by an independent accounting firm chosen by mutual agreement are contingent on a change in the ownership or effective control of Company or in the ownership of a substantial portion of the parties (the “Accounting Firm”) that any economic benefit, payment or distribution by assets of the Company or otherwise, would constitute a “parachute payment” as defined in Section 280G of the Code or any successor provision thereto, then the Company will compute the net after-tax proceeds to the Optionee (i) if such acceleration and/or such other benefits and payments would be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for the benefit of Executive, whether paid, payable, distributed or distributable federal income tax purposes pursuant to Section 280G of the terms of this Agreement Code (or otherwise any successor provision thereto) and (a “Payment”), would be subject to ii) taking into account the excise tax imposed by Section 4999 of the Internal Revenue Code Code, if such acceleration and/or such other benefits and payments would not be reduced. If the reduction of 1986, the acceleration and/or such other benefits and payments as amended described in clause (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2i) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated preceding sentence would result in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced greater net after-tax proceeds to the Reduced Amount only if Optionee than the Accounting Firm determines that Executive would have a greater “Net Afternet after-Tax Receipt” (as defined below) of aggregate Payments if Executive’s Agreement Payments were reduced tax proceeds to the Reduced Amount. “Net After Tax-Receipt” shall mean Optionee after taking into account the present value (as determined in accordance with excise tax imposed by Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code as described in clause (ii) of the preceding sentence, then the acceleration and/or such other benefits and under payments shall be reduced as described in clause (i); otherwise, there shall be no reduction of the nature described in clause (i), and Optionee shall pay all applicable state and local laws (and taxes, including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined tax imposed by applying the highest marginal rate under Section 1 4999 of the Code Code. If the Company determines that the reduction applies, the Company shall notify the Optionee of its determination and under state the Optionee in good faith shall select from among the foregoing benefits and local laws payments those which applied shall be reduced and, if the Optionee fails to Executive’s taxable income for make such selection within 15 calendar days following notification by the tax year in which Company, the CIC Date occurs, or Company shall make such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be madeselection.

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement to the contrary, in the event that it is determined by an independent accounting firm chosen by mutual agreement of the parties (the “Accounting Firm”) that any economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the tax year in which the CIC Date occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be made.

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement to the contrary, in the event that it is determined by an independent accounting firm chosen by mutual agreement of the parties (the “Accounting Firm”) that any economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to the Executive’s taxable income for the tax year in which the CIC Date occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be made.. Xxx X. Xxxxxxxx Employment Agreement

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement Section 3.3 to the contrary, in if, with respect to the event that it is determined by an independent accounting firm chosen by mutual agreement Optionee, acceleration of the parties vesting of this Option or the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be deemed a “payment” within the “Accounting Firm”meaning of Section 280G(b)(2) that of the Code), together with any economic benefit, payment or distribution by other payments which the Optionee has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to or for Section 1504(b) of the benefit Code) of Executivewhich the Company is a member, whether paidwould constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), payable, distributed or distributable pursuant the payments to the terms Optionee as set forth herein will be reduced to the largest amount as will result in no portion of this Agreement or otherwise (a “Payment”), would be such payments being subject to the excise tax imposed by Section 4999 of the Internal Revenue Code Code; provided, that such reduction shall be made only if the aggregate amount of 1986, as amended the payments after such reduction exceeds the difference between (and A) the applicable regulations thereunderamount of such payments absent such reduction minus (B) (the “Code”) (such aggregate amount of the excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” imposed under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G 4999 of the Code and the regulations thereunder), in the aggregate, is equal attributable to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”)any such excess parachute payments. Notwithstanding the foregoing, the Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines Optionee is subject to a separate agreement with the Company or a Subsidiary that Executive would have a greater “Net After-Tax Receipt” (as defined below) expressly addresses the potential application of aggregate Payments if Executive’s Agreement Payments were reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 280G or 4999 of the Code and (including, without limitation, that “payments” under applicable state and local laws (and including any employmentsuch agreement or otherwise will be reduced, social security that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or Medicare taxesthat such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and other taxes (including any other excise taxes)), determined by applying “payments” to the highest marginal rate Optionee pursuant to Section 3.3(a) of this Agreement will be treated as “payments” arising under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the tax year in which the CIC Date occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be madeseparate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement Section 2.3 to the contrary, in if, with respect to the event that it is determined by an independent accounting firm chosen by mutual agreement Participant, the acceleration of the parties vesting of the RSUs or the payment of cash in exchange for all or part of the RSUs as provided above (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Accounting FirmCode”) )), together with any other “payments” that any economic benefit, payment or distribution by the Participant has the right to receive from the Company or any corporation that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to or for Section 1504(b) of the benefit Code) of Executivewhich the Company is a member, whether paidwould constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), payable, distributed or distributable pursuant then the “payments” to the terms Participant as set forth herein will be reduced (or acceleration of this Agreement or otherwise (a vesting eliminated) to the largest amount as will result in no portion of such “Payment”), would be payments” being subject to the excise tax imposed by Section 4999 of the Internal Revenue Code Code; provided, however, that such reduction will be made only if the aggregate amount of 1986, as amended the payments after such reduction exceeds the difference between (and A) the applicable regulations thereunderamount of such payments absent such reduction minus (B) (the “Code”) (such aggregate amount of the excise tax referred imposed under Section 4999 of the Code attributable to any such excess parachute payments; and provided, further, that such payments will be reduced (or acceleration of vesting eliminated) by first reducing or eliminating payments or benefits the full value of which are required to be recognized as contingent upon a Change in this Agreement as the “Excise Tax”Control (determined in accordance with Treasury Regulation § 1.280G-1, Q/A-24), followed by reducing or eliminating payments or benefits 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 value farthest in time from such date. Notwithstanding the foregoing sentence, if the Participant is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) Sections 280G or 4999 of the Code, then this Section 2.3(b) will not apply, and any “payments” to the Participant as determined by the Accounting Firm, provided herein will be reduced so treated as “payments” arising under such separate agreement; provided, however, such separate agreement may not modify the time or form of payment under any Incentive Award that the present value of all Payments (calculated in accordance with constitutes deferred compensation subject to Section 280G 409A of the Code and if the regulations thereunder), in the aggregate, is equal modification would cause such Incentive Award to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced become subject to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if Executive’s Agreement Payments were reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined adverse tax consequences specified in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) 409A of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income for the tax year in which the CIC Date occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be made.

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement to the contrary, in if, with respect to Grantee, the event that it is determined by an independent accounting firm chosen by mutual agreement acceleration of the parties (the “Accounting Firm”) that any economic benefit, payment or distribution by the Company to or for the benefit vesting of Executive, whether paid, payable, distributed or distributable pursuant to the terms Restricted Shares as provided in Section 3 of this Agreement or otherwise (which acceleration could be deemed a “Payment”), would be subject to payment within the excise tax imposed by meaning of Section 4999 280G(b)(2) of the Internal Revenue Code of 1986, as amended (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”)), then together with any other payments which Grantee has the value right to receive from the Company or any corporation which is a member of any such Payments payable under this Agreement an “affiliated group” (the “Agreement Payments”) which constitute “parachute payments” under as defined in Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(31504(a) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced without regard to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if Executive’s Agreement Payments were reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(41504(b) of the Code) of which the Company is a Payment net member (together the “payments”), would constitute an “Excess Parachute Payment” (as defined in Section 280G(b)(1) of all taxes the Code), then the payments provided to Grantee under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment to be provided to Grantee, determined on an after-tax basis (taking into account the excise tax imposed on Executive with respect thereto under Sections 1 and pursuant to Section 4999 of the Code Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and under any applicable federal, state and local laws (income taxes). Grantee agrees to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including any employmentlegal counsel and accounting advice, social security or Medicare taxesas may reasonably be required, and shall be responsible for the payment of such experts’ fees. In the event that any payment intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Agreement, Grantee will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section 9. Employer will provide Grantee with all information reasonably requested by Grantee to permit Grantee to make such designation. In the event that Grantee fails to make such designation within five (5) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriate.” Except as expressly provided in this Amendment, all other taxes (including any other excise taxes))terms, determined by applying the highest marginal rate under Section 1 conditions, and provisions of the Code Agreements shall continue in full force and under state effect as provided therein and local laws which applied to Executive’s taxable income for the tax year in which the CIC Date occursneither party waives any rights, or such other rate(s) as modifies or revises the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be madeparties’ obligations thereunder.

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement to the contrary, in the event that it is determined by an independent accounting firm chosen by mutual agreement of the parties Company (the “Accounting Firm”) that any economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to the terms of this Agreement Agreement, the plans or programs referred to herein, or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such Accounting Firm determines that the Payments shall be reduced, then such reduction shall be made first by reducing cash payments due under this Agreement, then cash payments under other agreements, plans or programs, and then non-cash benefits, in each case in the reverse order in which they are due, until the present value of the Payments is reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to the Executive’s taxable income for the tax year in which the CIC Date change in ownership or control (within the meaning of Section 280G of the Code) giving rise to the Excise Tax occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be made.

Limitation on Change in Control Payments. Notwithstanding anything in this Agreement to the contrary, in the event that it is determined by an independent accounting firm chosen by mutual agreement of the parties (the “Accounting Firm”) that any economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if Executive’s Agreement Payments were reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to Executive’s taxable income Xxx X. Xxxxxxxx Employment Agreement Page 9 of 14 for the tax year in which the CIC Date occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to Executive in the relevant tax year(s) in which any Payment is expected to be made.