Common use of Additional Limitation Clause in Contracts

Additional Limitation. Notwithstanding anything in this Agreement or any other plan, arrangement or agreement to the contrary: (i) If any of the payments or benefits provided or to be provided by the Company or its affiliates to the Executive or for the Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments within the meaning of Section 280G of the Code (“Parachute Payments”) and would, but for this Section 6(b) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the Covered Payments shall be either (i) reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the “Reduced Amount”) or (ii) payable in full if the Executive’s receipt on an after-tax basis of the full amount of payments and benefits (after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax)) would result in the Executive receiving an amount greater than the Reduced Amount. (ii) Any such reduction shall be made in accordance with the requirements of Section 409A of the Code and the following: (A) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; (B) then cash payments shall be reduced before non-cash payments; and (C) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (iii) Any determination required under this Section shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination or at such earlier time as is reasonably requested by the Company or the Executive. The Company and the Executive shall provide the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section. For purposes of making the calculations and determinations required by this Section, the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. Furthermore, for purposes of the determination required under this Section, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accounting Firm in connection with the calculations required by this Section.

Additional Limitation. Notwithstanding anything Anything in this Agreement or any other plan, arrangement or agreement to the contrary: (i) If contrary notwithstanding, in the event that the amount of any of the payments compensation, payment or benefits provided or to be provided distribution by the Company or its affiliates to the Executive or for the benefit of the Executive’s benefit , whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments within the meaning of otherwise, calculated in a manner consistent with Section 280G of the Internal Revenue Code of 1986, as amended (the “Parachute Code”), and the applicable regulations thereunder (the “Total Payments”) and would, but for this Section 6(b) would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the Covered Total Payments shall be either (i) reduced to the minimum extent necessary to ensure so that no portion of the Covered Total Payments is subject to the Excise Tax but only if (that amount, A) the “Reduced Amount”) or (ii) payable in full if the Executive’s receipt on an after-tax basis net amount of the full Total Payments, as so reduced (and after subtracting the net amount of payments and benefits (after taking into account the applicable federal, statestate and local income and employment taxes on such reduced Total Payments) is greater than or equal to (B) the Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and foreign income, employment taxes on such Total Payments and excise taxes (including the amount of Excise Tax)) Tax to which the Executive would result be subject in respect of such unreduced Total Payments. Any reduction in the Executive receiving an amount greater than the Reduced Amount. (ii) Any such reduction Total Payments shall be made in accordance with the requirements of Section 409A of the Code and the followingfollowing order: (A1) the Covered Payments which do cash payments not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced firstCode; (B2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then cash the payments shall be reduced before non-cash payments; and (C) payments in reverse chronological order. The determination as to be made on a later payment date whether the reduction to the Total Payments shall be reduced before payments to be made on an earlier payment date. (iii) Any determination required under this Section apply shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) 15 business days of the Date of Termination Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. The Company and the Executive shall provide the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section. For purposes of making the calculations and determinations required by this Section, the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. Furthermore, for purposes of the determination required under this Sectionsuch determination, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be madeDate of Termination occurs, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accounting Firm in connection with the calculations required by this Section.

Additional Limitation. Notwithstanding anything (i) In the event that it shall be determined that any benefit or payment in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive under this Agreement Agreement, or any other plan, arrangement arrangement, or agreement to with the contrary: Employer (i) If any of the payments or benefits provided or to be provided by the Company or its affiliates to the Executive or for the Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) would constitute a “parachute payments payment” within the meaning of Section 280G of the Code and (“Parachute Payments”) and would, but for this Section 6(bsentence) be subject to the excise tax (the “Excise Tax”) imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectivelythat may hereafter be imposed), the aggregate present value of the Payments under this Agreement, and such other plan, arrangement or agreement with the Employer, shall be reduced (but not below zero) to the Reduced Amount. The “Excise Tax”), then the Covered Payments Reduced Amount” shall be either (iA) reduced to the minimum extent necessary to ensure largest portion of the Payments that would result in no portion of the Covered Payments is being subject to the Excise Tax or (that B) the largest portion, up to and including the total, of the Payments, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the “Reduced Amount”) or (ii) payable Excise Tax, results in full if the Executive’s receipt receipt, on an after-tax basis basis, of the full greater amount of payments and benefits (after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Tax)) would result . If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Executive receiving an amount greater than Payments equal the Reduced Amount. , the Employer shall reduce the Payments by first reducing or eliminating any cash payments (ii) Any such with the Payments to be made furthest in the future being reduced first), then by reducing or eliminating accelerated vesting of stock options or similar awards, and then by reducing or eliminating any other remaining Payments, provided that with each category the reduction shall be made done on a basis resulting in accordance with the requirements of highest amount retained by the Executive; and provided, further, that to the extent permitted by Section 409A of the Code and Sections 280G and 4999 of the following: (A) the Covered Payments which do not constitute nonqualified deferred compensation subject to Code, if a different reduction procedure would be permitted without violating Section 409A of the Code shall be reduced first; or losing the benefit of the reduction under Sections 280G and 4999 of the Code, the Executive may designate a different order of reduction. (Bii) then cash payments shall be reduced before non-cash payments; and (C) payments All determinations to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (iii) Any determination required under this Section 8(f) shall be made in writing in good faith by a nationally recognized an independent certified public accounting firm selected by the Company Employer and approved by the Executive (the “Accounting Firm”), which shall provide detailed its determinations and any supporting calculations both to the Company Employer and the Executive within fifteen ten (1510) business days following the Change of the Date of Termination or at such earlier time as is reasonably requested by the Company or the Executive. The Company and the Executive shall provide the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make a determination under this SectionControl. For purposes of making the calculations and determinations required by this SectionSection 8(f), the Accounting Firm may rely on reasonableshall take into account all applicable federal, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. Furthermore, for purposes of the determination required under this Section, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income and employment taxes and the Excise Tax (all computed at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxesactual marginal tax rate). Any determination determinations by the Accounting Firm in accordance with this Section 8(f) shall be binding upon the Company Employer and the Executive. The Company shall be responsible for all All of the fees and expenses incurred by of the Accounting Firm in connection with performing the calculations required determinations referred to in this Section 8(f) shall be borne solely by the Employer. (iii) Notwithstanding anything herein to the contrary, for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), if the Executive is a “specified employee” of a publicly held corporation at his termination date, the postponement provisions of Section 409A of the Code, as described in Section 18(a) below, shall apply, if applicable. Additionally, notwithstanding anything herein to the contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year. The Employer’s liability for Salary continuation pursuant to Section 8(c)(i) shall be reduced by the amount of any severance actually paid to the Executive pursuant to any severance pay plan of the Employer. Nothing in Section 8(c) or Section 8(d) shall be construed to affect the Executive’s right to receive COBRA continuation entirely at the Executive’s own cost to the extent that the Executive may continue to be entitled to COBRA continuation after the Executive’s right to reimbursements under Section 8(c)(ii) or Section 8(d) ceases. (iv) As used in this Section.Agreement, “Change of Control” means (x) a change in ownership of the Employer under clause (A) below or (y) a change in the ownership of a substantial portion of the assets of the Employer under clause (B) below:

Additional Limitation. Notwithstanding anything in this Agreement or any other plan, arrangement or agreement to the contrary: (i) If any of the payments or benefits provided or to be provided by the Company or its affiliates to the Executive or for the Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments within the meaning of Section 280G of the Code (“Parachute Payments”) and would, but for this Section 6(b) be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the Covered Payments shall be either (i) reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the “Reduced Amount”) or (ii) payable in full if the Executive’s receipt on an after-tax basis of the full amount of payments and benefits (after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax)) would result in the Executive receiving an amount greater than the Reduced Amount. (ii) Any such reduction shall be made in accordance with the requirements of Section 409A of the Code and the following: (A) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; (B) then cash payments shall be reduced before non-cash payments; and (C) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (iii) Any determination required under this Section shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination or at such earlier time as is reasonably requested by the Company or the Executive. The Company and the Executive shall provide the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section. For purposes of making the calculations and determinations required by this Section, the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. Furthermore, for purposes of the determination required under this Section, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accounting Firm in connection with the calculations required by this Section.

Additional Limitation. Notwithstanding anything (i) Anything in this Agreement or any other plan, arrangement or agreement to the contrary: (i) If contrary notwithstanding, in the event that the amount of any of the payments compensation, payment or benefits provided or to be provided distribution by the Company or its affiliates to the Executive or for the benefit of the Executive’s benefit , whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments within the meaning of otherwise, calculated in a manner consistent with Section 280G of the Code Code, and the applicable regulations thereunder (“Parachute the "Augtegate Payments”) and would"), but for this Section 6(b) would be subject to the excise tax imposed under by Section 4999 of the Code Code, then the Aggregate Payments shall be reduced (or any successor provision theretobut not below zero) or any similar so that the sum of all of the Aggregate Payments shall be $1.00 less than the amount at which the Executive becomes subject to the excise tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the Covered Payments shall be either (i) reduced to the minimum extent necessary to ensure that no portion Section 4999 of the Covered Payments is subject to the Excise Tax (Code; provided that amount, the “Reduced Amount”) or (ii) payable in full such reduction shall only occur if the Executive’s receipt on an after-tax basis of the full amount of payments and benefits (after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax)) it would result in the Executive receiving an amount greater a higher After Tax Amount (as defined below) than the Reduced Amount. (ii) Any Executive would receive if the Aggregate Payments were not subject to such reduction reduction. In such event, the Aggregate Payments shall be made reduced in accordance the following order, in each case, in reverse chronological order beginning with the requirements of Section 409A Aggregate Payments that are to be paid the furthest in time from consummation of the Code and transaction that is subject to Section 280G of the followingCode: (AI) the Covered Payments which do cash payments not constitute nonqualified deferred compensation subject to Section 409A of the Code Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of 9 9 (iv) notwithstanding anything to the contrary in any applicable equity award, option agreement or stock - based award agreement, all stock options and other stock - based awards held by the Executive shall immediately accelerate and become fully exercisable or nonforfeitable as of the later of (i) the Executive's Date of Termination or (ii) the effective date of the Separation Agreement; provided that in order to effectuate the accelerated vesting contemplated by this subsection, the forfeiture of the unvested portion of such awards that would otherwise be reduced first; forfeited on the Date of Termination will be delayed until the earlier of (A) the effective date of the Separation Agreement (at which time acceleration will occur), or (B) then cash payments the date that the Separation Agreement can no longer become fully effective (at which time the unvested portion of such awards will be forfeited). Notwithstanding the foregoing, no additional vesting of any such awards shall occur during the period between the Date of Termination and the effective date of the acceleration. The Executive shall also be reduced before non-cash payments; entitled to any other rights and benefits with respect to equity awards, options and stock - related awards, to the extent and upon the terms provided in the employee stock option or incentive plan or any agreement or other instrument attendant thereto pursuant to which such options or awards were granted; and (Cv) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (iii) Any determination required under this Section shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days with outplacement assistance in accordance with the Company's policies and procedures in effect as of the Date of Termination or for a period of 12 months at such earlier time as is reasonably requested by the Company or the Executiveno charge. The Company and the Executive shall provide the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make a determination amounts payable under this Section. For purposes of making Section 6(a), to the calculations extent taxable, shall be paid or commence to be paid within 60 days after the Date ofTermination;provided, however, that if the 60 - day period begins in one calendar year and determinations required by this Sectionends in a second calendar year, such payments to the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning extent they qualify as "non - qualified deferred compensation" within the application meaning of Section 280G and Section 4999 409A of the Code. Furthermore, for purposes of the determination required under this Section, the Executive shall be deemed paid or commence to pay federal income taxes at be paid in the highest marginal rate of federal income taxation applicable to individuals for the second calendar year in which by the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction last day of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accounting Firm in connection with the calculations required by this Section60 - day period.

Additional Limitation. Notwithstanding anything (a) Anything in this Agreement or any other plan, arrangement or agreement to the contrary: (i) If contrary notwithstanding, in the event it shall be determined that any of the payments compensation, payment or benefits provided or to be provided distribution by the Company or its affiliates to the Executive or for the benefit of the Executive’s benefit , whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered the "Severance Payments”) constitute parachute payments within the meaning of Section 280G of the Code (“Parachute Payments”) and would"), but for this Section 6(b) would be subject to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (or any successor provision thereto) or any similar tax imposed by state or local law the "Code"), or any interest or penalties are incurred by the Executive with respect to such taxes excise tax (collectivelysuch excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Covered Payments following provisions shall be either apply: (i) If the Severance Payments, reduced to by the minimum extent necessary to ensure that no portion sum of the Covered Payments is subject to (A) the Excise Tax and (that amount, B) the “Reduced Amount”) or (ii) payable in full if the Executive’s receipt on an after-tax basis total of the full amount of payments and benefits (after taking into account the applicable federalFederal, state, and local income and foreign incomeemployment taxes payable by Executive on the amount of the Severance Payments which are in excess of the Threshold Amount, employment and excise taxes (including the Excise Tax)) would result in the Executive receiving an amount are greater than or equal to the Reduced Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement. (ii) Any such reduction shall be made in accordance with If the requirements Threshold Amount is less than (x) the Severance Payments, but greater than (y) the Severance Payments reduced by the sum of Section 409A of the Code and the following: (A) the Covered Excise Tax and (B) the total of the Federal, state, and local income and employment taxes on the amount of the Severance Payments which do not constitute nonqualified deferred compensation subject to Section 409A are in excess of the Code Threshold Amount, then the benefits payable under this Agreement shall be reduced first; (Bbut not below zero) then cash to the extent necessary so that the maximum Severance Payments shall not exceed the Threshold Amount. To the extent that there is more than one method of reducing the payments to bring them within the Threshold Amount, Executive shall determine which method shall be reduced before non-cash paymentsfollowed; and (C) payments provided that if Executive fails to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (iii) Any make such determination required under this Section shall be made in writing in good faith by a nationally recognized accounting firm selected by within 45 days after the Company (has sent Executive written notice of the “Accounting Firm”)need for such reduction, which shall provide detailed supporting calculations both to the Company and may determine the Executive within fifteen (15) business days amount of the Date of Termination or at such earlier time as is reasonably requested by the Company or the Executive. The Company and the Executive shall provide the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section. For purposes of making the calculations and determinations required by this Section, the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. Furthermore, for purposes of the determination required under this Section, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accounting Firm in connection with the calculations required by this Sectionits sole discretion.

Additional Limitation. Notwithstanding anything in this Agreement or any other plan, arrangement or agreement to the contrary: (ia) If any there is a change in ownership or control of the payments Company that would cause any payment or benefits provided or to be provided distribution by the Company or its affiliates any other Person or entity to the Executive or for the Executive’s benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “Covered PaymentsPayment”) constitute parachute payments within the meaning of Section 280G of the Code (“Parachute Payments”) and would, but for this Section 6(b) to be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or such excise tax, together with any interest or penalties incurred by Executive with respect to such taxes (collectivelyexcise tax, the “Excise Tax”), then Executive will receive the Covered Payments shall be either (i) reduced to the minimum extent necessary to ensure that no portion greatest of the Covered Payments is subject to following, whichever gives Executive the Excise Tax (that amount, the “Reduced Amount”) or (ii) payable in full if the Executive’s receipt on an highest net after-tax basis of the full amount of payments and benefits (after taking into account the applicable federal, state, local and foreign income, employment and excise taxes social security taxes): (including a) the Payments or (b) one dollar less than the amount of the Payments that would subject Executive to the Excise TaxTax (the “Safe Harbor Amount”)) would result . If a reduction in the Executive receiving an amount greater than Payments is necessary so that the Reduced Amount. Payments equal the Safe Harbor Amount and none of the Payments constitutes nonqualified deferred compensation (ii) Any such reduction shall be made in accordance with within the requirements meaning of Section 409A of the Code and Code), then the following: (A) reduction shall occur in the Covered Payments which do not constitute manner Executive elects in writing prior to the date of payment. If any Payment constitutes nonqualified deferred compensation subject or if Executive fails to Section 409A of elect an order, then the Code shall Payments to be reduced first; (B) then cash payments shall 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 before non-cash payments; and (C) payments in the inverse order of when payment would have been made to Executive, until the reduction is achieved. All determinations required to be made on a later payment date shall be reduced before payments under this Section, including whether and when the Safe Harbor Amount is required and the amount of the reduction of the Payments and the assumptions to be made on an earlier payment date. (iii) Any determination required under this Section utilized in arriving at such determination, shall be made in writing in good faith by a nationally recognized certified public accounting firm selected mutually agreed to by the Executive and the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company . All fees and the Executive within fifteen (15) business days expenses of the Date of Termination or at such earlier time as is reasonably requested by the Company or the Executive. The Company and the Executive shall provide the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section. For purposes of making the calculations and determinations required by this Section, the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. Furthermore, for purposes of the determination required under this Section, the Executive shall be deemed to pay federal income taxes at borne solely by the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxesCompany. Any determination by the Accounting Firm shall be binding upon Company and Executive. (b) To the extent requested by the Executive, the Company shall cooperate with the Executive in good faith in valuing, and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive's agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on, or after the date of a “change in connection ownership or control” of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code)), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the calculations required by this Sectionfinal regulations under Section 280G of the Code.

Additional Limitation. Notwithstanding anything (i) Anything in this Agreement or any other plan, arrangement or agreement to the contrary: (i) If contrary notwithstanding, in the event that the amount of any of the payments compensation, payment or benefits provided or to be provided distribution by the Company or its affiliates to the Executive or for the benefit of the Executive’s benefit , whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments within the meaning of otherwise, calculated in a manner consistent with Section 280G of the Code Code, and the applicable regulations thereunder (“Parachute the "Aaerenate Payments”) and would"), but for this Section 6(b) would be subject to the excise tax imposed under by Section 4999 of the Code Code, then the Aggregate Payments shall be reduced (or any successor provision theretobut not below zero) or any similar so that the sum of all of the Aggregate Payments shall be $1.00 less than the amount at which the Executive becomes subject to the excise tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the Covered Payments shall be either (i) reduced to the minimum extent necessary to ensure that no portion Section 4999 of the Covered Payments is subject to the Excise Tax (Code; provided that amount, the “Reduced Amount”) or (ii) payable in full such reduction shall only occur if the Executive’s receipt on an after-tax basis of the full amount of payments and benefits (after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax)) it would result in the Executive receiving an amount greater a higher After Tax Amount (as defined below) than the Reduced Amount. (ii) Any Executive would receive if the Aggregate Payments were not subject to such reduction reduction. In such event, the Aggregate Payments shall be made reduced in accordance the following order, in each case, in reverse chronological order beginning with the requirements of Section 409A Aggregate Payments that are to be paid the furthest in time from consummation of the Code and transaction that is subject to Section 280G of the followingCode: (A1) the Covered Payments which do cash payments not constitute nonqualified deferred compensation subject to Section 409A of the Code Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of 9 9 (iv) notwithstanding anything to the contrary in any applicable equity award, option agreement or stock - based award agreement, all stock options and other stock - based awards held by the Executive shall immediately accelerate and become fully exercisable or nonforfeitable as of the later of (i) the Executive's Date of Termination or (ii) the effective date of the Separation Agreement; provided that in order to effectuate the accelerated vesting contemplated by this subsection, the forfeiture of the unvested portion of such awards that would otherwise be reduced first; forfeited on the Date of Termination will be delayed until the earlier of (A) the effective date of the Separation Agreement (at which time acceleration will occur), or (B) then cash payments the date that the Separation Agreement can no longer become fully effective (at which time the unvested portion of such awards will be forfeited). Notwithstanding the foregoing, no additional vesting of any such awards shall occur during the period between the Date of Termination and the effective date of the acceleration. The Executive shall also be reduced before non-cash payments; entitled to any other rights and benefits with respect to equity awards, options and stock - related awards, to the extent and upon the terms provided in the employee stock option or incentive plan or any agreement or other instrument attendant thereto pursuant to which such options or awards were granted; and (Cv) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (iii) Any determination required under this Section shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days with outplacement assistance in accordance with the Company's policies and procedures in effect as of the Date of Termination or for a period of 12 months at such earlier time as is reasonably requested by the Company or the Executiveno charge. The Company and the Executive shall provide the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make a determination amounts payable under this Section. For purposes Section 6(a), to the extent taxable, shall be paid or commence to be paid within 60 days after the Date of making Termination; provided, however, that if the calculations 60 - day period begins in one calendar year and determinations required by this Sectionends in a second calendar year, such payments to the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning extent they qualify as "non - qualified deferred compensation" within the application meaning of Section 280G and Section 4999 409A of the Code. Furthermore, for purposes of the determination required under this Section, the Executive shall be deemed paid or commence to pay federal income taxes at be paid in the highest marginal rate of federal income taxation applicable to individuals for the second calendar year in which by the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction last day of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accounting Firm in connection with the calculations required by this Section60 - day period.