Common use of Certain Limits Clause in Contracts

Certain Limits. (a) Notwithstanding anything in this Agreement to the contrary, but subject to the application of clause (b) below, to the extent the Employee would be subject to the excise tax under Section 4999 of the Code on the amounts payable pursuant to this Agreement and such other amounts or benefits the Employee receives from the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person, required to be included in the calculation of parachute payments for purposes of Sections 280G and 4999 of the Code, the amounts vested pursuant to Section 2(a) of this Agreement shall be automatically reduced to an amount one dollar less than that which, when combined with such other amounts, would subject the Employee to such excise tax. (b) If the Employee’s employment with the Company is terminated by the Company without Cause (hereinafter defined) or by the Employee upon a Constructive Termination for Good Reason (hereinafter defined), in each case within one year following a Change in Control (a “Protected Termination”), then the provisions of this clause (b) will apply and clause (a) shall not be applicable. If a Protected Termination occurs, then notwithstanding anything in this Agreement to the contrary, if (i) any amounts due to the Employee under this Agreement and any other plan or program of the Company constitute a “parachute payment,” as such term is defined in Code Section 280G(b)(2), and (ii) the amount of the parachute payment, reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Code Section 4999, is less than the amount the Employee would receive if he were paid three times his “base amount,” as defined in Code Section 280G(b)(3), less one dollar, reduced by all federal, state and local taxes applicable thereto, then the aggregate of the amounts constituting the parachute payment shall be reduced to an amount that will equal three times his base amount less one dollar. (c) The determinations to be made with respect to this Section shall be made by an accounting firm jointly selected by the Company’s Board of Directors and the Employee and paid by the Company, and which may be the Company’s independent auditors. (d) For purposes of this Section 9:

Certain Limits. (a) Notwithstanding anything in this Agreement to the contrary, but subject to the application of clause (b) below, to the extent the Employee would be subject to the excise tax under Section 4999 of the Code on the amounts payable pursuant to this Agreement and such other amounts or benefits the Employee receives from the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person, required to be included in the calculation of parachute payments for purposes of Sections 280G and 4999 of the Code, the amounts vested pursuant to Section 2(a) of this Agreement shall be automatically reduced to an amount one dollar less than that which, when combined with such other amounts, would subject the Employee to such excise tax. (b) If the Employee’s employment with the Company is terminated by the Company without Cause (hereinafter defined) or by the Employee upon a Constructive Termination for Good Reason (hereinafter defined), in each case within one year following a Change in Control (a “Protected Termination”), then the provisions of this clause (b) will apply and clause (a) shall not be applicable. If a Protected Termination occurs, then notwithstanding anything in this Agreement to the contrary, if (iI) any amounts due to the Employee under this Agreement and any other plan or program of the Company constitute a “parachute payment,” as such term is defined in Code Section 280G(b)(2), and (ii) the amount of the parachute payment, reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Code Section 4999, is less than the amount the Employee would receive if he were paid three times his “base amount,” as defined in Code Section 280G(b)(3), less one dollar, reduced by all federal, state and local taxes applicable thereto, then the aggregate of the amounts constituting the parachute payment shall be reduced to an amount that will equal three times his base amount less one dollar. (c) The determinations to be made with respect to this Section shall be made by an accounting firm jointly selected by the Company’s Board of Directors and the Employee and paid by the Company, and which may be the Company’s independent auditors. (d) For purposes of this Section 9:

Certain Limits. (a) Notwithstanding anything in this Agreement to the contrary, but subject to the application of clause (b) below, to the extent the Employee would be subject to the excise tax under Section 4999 of the Code on the amounts payable pursuant to this Agreement and such other amounts or benefits the Employee receives from the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person, required to be included in the calculation of parachute payments for purposes of Sections 280G and 4999 of the Code, the amounts vested pursuant to Section 2(a) of this Agreement shall be automatically reduced to an amount one dollar less than that which, when combined with such other amounts, would subject the Employee to such excise tax. (b) If the Employee’s employment with the Company is terminated by the Company without Cause (hereinafter defined) or by the Employee upon a Constructive Termination for Good Reason (hereinafter defined), in each case within one year following a Change in Control (a “Protected Termination”), then the provisions of this clause (b) will apply and clause (a) shall not be applicable. If a Protected Termination occurs, then notwithstanding anything in this Agreement to the contrary, if (i) any amounts due to the Employee under this Agreement and any other plan or program of the Company constitute a “parachute payment,” as such term is defined in Code Section 280G(b)(2), and (ii) the amount of the parachute payment, reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Code Section 4999, is less than the amount the Employee would receive if he were paid three times his “base amount,” as defined in Code Section 280G(b)(3), less one dollar, reduced by all federal, state and local taxes applicable thereto, then the aggregate of the amounts constituting the parachute payment shall be reduced to an amount that will equal three times his base amount less one dollar. (c) The determinations to be made with respect to this Section shall be made by an accounting firm jointly selected by the Company’s Board of Directors and the Employee and paid by the Company, and which may be the Company’s independent auditors. (d) For purposes of this Section 910:

Certain Limits. (a) Notwithstanding anything in this Agreement to the contrary, but subject to the application of clause (b) below, to the extent the Employee would be subject to the excise tax under Section 4999 of the Code on the amounts payable pursuant to this Agreement and such other amounts or benefits the Employee receives from the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person, required to be included in the calculation of parachute payments for purposes of Sections 280G and 4999 of the Code, the amounts vested pursuant to Section 2(a) of this Agreement shall be automatically reduced to an amount one dollar less than that which, when combined with such other amounts, would subject the Employee to such excise tax. (b) If the Employee’s employment with the Company is terminated by the Company without Cause (hereinafter defined) or by the Employee upon a Constructive Termination for Good Reason (hereinafter defined), in each case within one year following a Change in Control (a “Protected Termination”), then the provisions of this clause (b) will apply and clause (a) shall not be applicable. If a Protected Termination occurs, then notwithstanding anything in this Agreement to the contrary, if (i) any amounts due to the Employee under this Agreement and any other plan or program of the Company constitute a “parachute payment,” ’ as such term is defined in Code Section 280G(b)(2), and (ii) the amount of the parachute payment, reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Code Section 4999, is less than the amount the Employee would receive if he were paid three times his “base amount,” as defined in Code Section 280G(b)(3), less one dollar, reduced by all federal, state and local taxes applicable thereto, then the aggregate of the amounts constituting the parachute payment shall be reduced to an amount that will equal three times his base amount less one dollar. (c) The determinations to be made with respect to this Section shall be made by an accounting firm jointly selected by the Company’s Board of Directors and the Employee and paid by the Company, and which may be the Company’s independent auditors. (d) For purposes of this Section 9: (i) Termination for “Cause’ shall have occurred if, on or after the date of the Change in Control, the Company terminates Employee’s employment because (i) as a result of an investigation, the Employee shall (A) be found to have engaged in, (B) admit in writing facts amounting to, or (C) be held civilly liable for, fraud, embezzlement or dishonesty, (ii) the Employee discloses Company trade secrets or confidential Company matters to unauthorized persons and such disclosures are reasonably likely to be materially injurious to the Company, monetarily or otherwise, (iii) the Employee, after reasonable notice and opportunity to correct his conduct, willfully refuses or continually neglects to substantially perform his duties and assigned work, or (iv) the Employee materially breaches any provision of any employment agreement with the Company.

Certain Limits. (a) Notwithstanding anything in this Agreement to the contrary, but subject to the application of clause (b) below, to the extent the Employee would be subject to the excise tax under Section 4999 of the Code on the amounts payable pursuant to this Agreement and such other amounts or benefits the Employee receives from the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person, required to be included in the calculation of parachute payments for purposes of Sections 280G 2800 and 4999 of the Code, the amounts vested pursuant to Section 2(a) of this Agreement shall be automatically reduced to an amount one dollar less than that which, when combined with such other amounts, would subject the Employee to such excise tax. (b) If the Employee’s employment with the Company is terminated by the Company without Cause (hereinafter defined) or by the Employee upon a Constructive Termination for Good Reason (hereinafter defined), in each case within one year following a Change in Control (a “Protected Termination”), then the provisions of this clause (b) will apply and clause (a) shall not be applicable. If a Protected Termination occurs, then notwithstanding anything in this Agreement to the contrary, if (i) any amounts due to the Employee under this Agreement and any other plan or program of the Company constitute a “‘parachute payment,” ’ as such term is defined in Code Section 280G(b)(2), and (ii) the amount of the parachute payment, reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Code Section 4999, is less than the amount the Employee would receive if he were paid three times his “base amount,” as defined in Code Section 280G(b)(3), less one dollar, reduced by all federal, state and local taxes applicable thereto, then the aggregate of the amounts constituting the parachute payment shall be reduced to an amount that will equal three times his base amount less one dollar. (c) The determinations to be made with respect to this Section shall be made by an accounting firm jointly selected by the Company’s Board of Directors and the Employee and paid by the Company, and which may be the Company’s independent auditors. (d) For purposes of this Section 9:

Certain Limits. (a) Notwithstanding anything in this Agreement to the contrary, but subject to the application of clause (b) below, to the extent the Employee would be subject to the excise tax under Section 4999 of the Code on the amounts payable pursuant to this Agreement and such other amounts or benefits the Employee receives from the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person, required to be included in the calculation of parachute payments for purposes of Sections 280G and 4999 of the Code, the amounts vested pursuant to Section 2(a) of this Agreement shall be automatically reduced to an amount one dollar less than that which, when combined with such other amounts, would subject the Employee to such excise tax. (b) If the Employee’s employment with the Company is terminated by the Company without Cause (hereinafter defined) or by the Employee upon a Constructive Termination for Good Reason (hereinafter defined), in each case within one year following a Change in Control (a “‘Protected Termination”’), then the provisions of this clause (b) will apply and clause (a) shall not be applicable. If a Protected Termination occurs, then notwithstanding anything in this Agreement to the contrary, if (i) any amounts due to the Employee under this Agreement and any other plan or program of the Company constitute a “parachute payment,” as such term is defined in Code Section 280G(b)(2), and (ii) the amount of the parachute payment, reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Code Section 4999, is less than the amount the Employee would receive if he were paid three times his “‘base amount,” as defined in Code Section 280G(b)(3), less one dollar, reduced by all federal, state and local taxes applicable thereto, then the aggregate of the amounts constituting the parachute payment shall be reduced to an amount that will equal three times his base amount less one dollar. (c) The determinations to be made with respect to this Section shall be made by an accounting firm jointly selected by the Company’s Board of Directors and the Employee and paid by the Company, and which may be the Company’s independent auditors. (d) For purposes of this Section 9: