Common use of Limitation on Parachute Payments Clause in Contracts

Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by You with the Company or any subsidiary or affiliate, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section (an “Other Agreement”), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to You (including groups or classes of participants or beneficiaries of which You are a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for You (a “Benefit Arrangement”), if You are a “disqualified individual,” as defined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to You or become vested, exercisable or payable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments, rights, or benefits to or for You, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other Agreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which You are or would be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in effect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by You under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by You without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute Payment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with all other rights, payments, or benefits to or for You under any Other Agreement or any Benefit Arrangement would cause You to be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount received by You as described in clause (ii) of the preceding sentence, then You shall have the right, in Your sole discretion, to designate those rights, payments or benefits (or the vesting or exercisability thereof) under this Agreement, any Other Agreements and any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to You (or the vesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this Section, including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by You in writing (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and You within 15 business days of the receipt of notice from You or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company or any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G of the Code), You shall appoint another nationally recognized accounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and You.

Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by You with the Company or any subsidiary or affiliate, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section (an “Other Agreement”), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to You (including groups or classes of participants or beneficiaries of which You are a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for You (a “Benefit Arrangement”), if You are a “disqualified individual,” as defined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to You or become vested, exercisable or payable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments, rights, or benefits to or for You, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other Agreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which You are or would be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in effect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by You under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by You without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute Payment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with all other rights, payments, or benefits to or for You under any Other Agreement or any Benefit Arrangement would cause You to be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount received by You as described in clause (ii) of the preceding sentence, then You shall have the rightpayment, in Your sole discretionright to exercise, to designate those rightsvesting, payments or benefits (or the vesting or exercisability thereof) other benefit under this Agreement, any Other Agreements and any Benefit Arrangements that should Agreement will be reduced or eliminated so as to avoid having the rightpayment, payment right to exercise, vesting, or other benefit to You (or the vesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. The reduction or elimination of payments, rights to exercise, vesting, or other benefits hereunder pursuant to the preceding sentence, if applicable, shall be made by first reducing or eliminating the payments under Section 3(d)(A) and then Section 3(d)(B) hereof, and then by reducing or eliminating the value of the benefits contemplated by Sections 3(d)(C) hereof, and in any event shall be made in such a manner as to maximize the economic present value as of the date of the Change in Control for purposes of Section 280G of the Code (as determined by the Accounting Firm (as defined below) using the discount rate required by Section 280G(d)(4) of the Code) of all rights, payments and benefits hereunder. All determinations required to be made under this Section, including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by You in writing (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and You within 15 business days of the receipt of notice from You or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company or any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G of the Code), You shall appoint another nationally recognized accounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and You. 6. Section 9 of the Agreement shall be amended and restated in its entirety to read as follows:

Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by You the Employee with the Company or any subsidiary or affiliate, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section paragraph (an “Other Agreement”), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to You the Employee (including groups or classes of participants or beneficiaries of which You are the Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for You the Employee (a “Benefit Arrangement”), if You are the Employee is a “disqualified individual,” as defined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to You the Employee or become vested, exercisable or payable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments, rights, or benefits to or for Youthe Employee, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other Agreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which You are the Employee is or would be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in effect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by You the Employee under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by You the Employee without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute Payment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with all other rights, payments, or benefits to or for You the Employee under any Other Agreement or any Benefit Arrangement would cause You the Employee to be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount received by You the Employee as described in clause (ii) of the preceding sentence, then You the Employee shall have the right, in Your the Employee’s sole discretion, to designate those rights, payments or benefits (or the vesting or exercisability thereof) under this Agreement, any Other Agreements and any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to You the Employee (or the vesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this SectionSection 9(e), including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by You the Employee in writing (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and You the Employee within 15 business days of the receipt of notice from You the Employee or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company or any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G of the Code), You the Employee shall appoint another nationally recognized accounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and Youthe Employee.

Limitation on Parachute Payments. Notwithstanding any other provision If, in the opinion of this Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into tax counsel selected by You with the Company or any subsidiary or affiliate, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section (an “Other Agreement”), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to You (including groups or classes of participants or beneficiaries of which You are a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for You (a “Benefit Arrangement”), if You are a “disqualified individual,” as defined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to You or become vested, exercisable or payable, as applicable, (i) acceptable to the extent that such paymentExecutive, right to exercise, vesting, the Severance Payment (in its full amount or other benefit, taking into account all other payments, rights, or benefits to or for You, or becoming vested, exercisable or payableas partially reduced, as the case may be, under this Agreement, ) plus all Other Agreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting other payments or other benefit to benefits which You are or would be entitled under this Agreement to be considered a “constitute "parachute payment” payments" within the meaning of Section section 280G(b)(2) of the Code exceeds the amount that is deductible by the Company by reason of section 280G, and in the opinion or such tax counsel, the Severance Payment (in its full amount or as then in effect (a “Parachute Payment”) and (ii) ifpartially reduced, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by You under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by You without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute Payment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with case may be) plus all other rights, payments, or benefits to or for You under any Other Agreement or any Benefit Arrangement would cause You to be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount received by You as described in clause (ii) of the preceding sentence, then You shall have the right, in Your sole discretion, to designate those rights, payments or benefits (or the vesting or exercisability thereof) under this Agreement, any Other Agreements and any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to You (or the vesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this Section, including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by You in writing (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and You within 15 business days of the receipt of notice from You or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company or any individual, entity or group effecting a change in the ownership or effective control of the Company (constitute "parachute payments" within the meaning of Section section 280G(b)(2) of the Code are not reasonable compensation for services actually rendered or to be rendered, within the meaning of section 280G(b)(4) of the Code, the Severance Payment shall be reduced by the excess of the aggregate "parachute payments" that would be paid to or for the Executive without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code). The value of any non-cash benefit or any deferred cash payments shall be determined by the Company in accordance with the principles of sections 280G(d)(3) and (4) of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, You notwithstanding the good faith of the Executive and the Company in applying the terms of this subsection, the aggregate "parachute payments" paid to or for the Executive's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by the Company or its Affiliates by reason of section 280G of the Code, then the Executive shall appoint another nationally recognized accounting firm that is reasonably acceptable have an obligation to pay the Company upon demand an amount equal to the Company to make sum of (A) the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses excess of the Accounting Firm shall be borne solely aggregate "parachute payments" paid to or for the Executive's benefit over the aggregate "parachute payments" that would have been paid to or for the Executive's's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Company. Any determination by Code; and (B) interest on the Accounting Firm shall be binding upon amount set forth in clause (A) of this sentence at the Company and Youapplicable Federal rate (as defined in section 1274(d) of the Code) from the date of the Executive's receipt of such excess until the date of such payment.

Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by You with the Company or any subsidiary or affiliate, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section (an “Other Agreement”), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to You (including groups or classes of participants or beneficiaries of which You are a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for You (a “Benefit Arrangement”), if You are a “disqualified individual,” as defined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to You or become vested, exercisable or payable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments, rights, or benefits to or for You, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other Agreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which You are or would be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in effect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by You under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by You without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute Payment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with all other rights, payments, or benefits to or for You under any Other Agreement or any Benefit Arrangement would cause You to be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount received by You as described in clause (ii) of the preceding sentence, then You shall have the rightpayment, in Your sole discretionright to exercise, to designate those rightsvesting, payments or benefits (or the vesting or exercisability thereof) other benefit under this Agreement, any Other Agreements and any Benefit Arrangements that should Agreement will be reduced or eliminated so as to avoid having the rightpayment, payment right to exercise, vesting, or other benefit to You (or the vesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. The reduction or elimination of payments, rights to exercise, vesting, or other benefits hereunder pursuant to the preceding sentence, if applicable, shall be made by first reducing or eliminating the payments under Section 3(d)(A) and then Section 3(d)(B) hereof, and then by reducing or eliminating the value of the benefits contemplated by Sections 3(d)(C) and 4 hereof, and in any event shall be made in such a manner as to maximize the economic present value as of the date of the Change in Control for purposes of Section 280G of the Code (as determined by the Accounting Firm (as defined below) using the discount rate required by Section 280G(d)(4) of the Code) of all rights, payments and benefits hereunder. All determinations required to be made under this Section, including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by You in writing (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and You within 15 business days of the receipt of notice from You or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company or any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G of the Code), You shall appoint another nationally recognized accounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and You. 6. Section 10 of the Agreement shall be amended and restated in its entirety to read as follows:

Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by You the Employee with the Company or any subsidiary or affiliate, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section paragraph (an “Other Agreement”), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to You the Employee (including groups or classes of participants or beneficiaries of which You are the Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for You the Employee (a “Benefit Arrangement”), if You are the Employee is a “disqualified individual,” as defined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to You the Employee or become vested, exercisable or payable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments, rights, or benefits to or for Youthe Employee, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other Agreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which You are the Employee is or would be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in effect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by You the Employee under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by You the Employee without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute Payment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with all other rights, payments, or benefits to or for You the Employee under any Other Agreement or any Benefit Arrangement would cause You the Employee to be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount received by You the Employee as described in clause (ii) of the preceding sentence, then You the Employee shall have the right, in Your the Employee’s sole discretion, to designate those rights, payments or benefits (or the vesting or exercisability thereof) under this Agreement, any Other Agreements and any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to You the Employee (or the vesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this SectionSection 9(e), including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by You the Employee in writing (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and You the Employee within 15 business days of the receipt of notice from You the Employee or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company or any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G of the Code), You the Employee shall appoint another nationally recognized accounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and You.recognized

Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by You with the Company or any subsidiary or affiliate, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section (an “Other Agreement”), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to You (including groups or classes of participants or beneficiaries of which You are a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for You (a “Benefit Arrangement”), if You are a “disqualified individual,” as defined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to You or become vested, exercisable or payable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments, rights, or benefits to or for You, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other Agreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which You are or would be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in effect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by You under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by You without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute Payment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with all other rights, payments, or benefits to or for You under any Other Agreement or any Benefit Arrangement would cause You to be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount received by You as described in clause (ii) of the preceding sentence, then You shall have the rightpayment, in Your sole discretionright to exercise, to designate those rightsvesting, payments or benefits (or the vesting or exercisability thereof) other benefit under this Agreement, any Other Agreements and any Benefit Arrangements that should Agreement will be reduced or eliminated so as to avoid having the rightpayment, payment right to exercise, vesting, or other benefit to You (or the vesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. The reduction or elimination of payments, rights to exercise, vesting, or other benefits hereunder pursuant to the preceding sentence, if applicable, shall be made by first reducing or eliminating the payments under Section 2(d)(A) and then Section 2(d)(B) hereof, and then by reducing or eliminating the value of the benefits contemplated by Sections 2(d)(C) hereof, and in any event shall be made in such a manner as to maximize the economic present value as of the date of the Change in Control for purposes of Section 280G of the Code (as determined by the Accounting Firm (as defined below) using the discount rate required by Section 280G(d)(4) of the Code) of all rights, payments and benefits hereunder. All determinations required to be made under this Section, including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by You in writing (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and You within 15 business days of the receipt of notice from You or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company or any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G of the Code), You shall appoint another nationally recognized accounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and You. 6. Section 8 of the Agreement shall be amended and restated in its entirety to read as follows:

Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by You the Executive with the Company or any subsidiary or affiliate, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section paragraph (an “"Other Agreement”"), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to You the Executive (including groups or classes of participants or beneficiaries of which You are the Executive is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for You the Executive (a “"Benefit Arrangement”"), if You are the Executive is a “"disqualified individual,” " as defined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to You the Executive or become vested, exercisable or payable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments, rights, or benefits to or for Youthe Executive, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other Agreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which You are the Executive is or would be entitled under this Agreement to be considered a “"parachute payment” " within the meaning of Section 280G(b)(2) of the Code as then in effect (a “"Parachute Payment”") and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by You the Executive under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by You the Executive without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute Payment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with all other rights, payments, or benefits to or for You the Executive under any Other Agreement or any Benefit Arrangement would cause You the Executive to be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount received by You the Executive as described in clause (ii) of the preceding sentence, then You the Executive shall have the right, in Your the Executive's sole discretion, to designate those rights, payments or benefits (or the vesting or exercisability thereof) under this Agreement, any Other Agreements and any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to You the Executive (or the vesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this SectionSection 9(e), including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by You the Executive in writing (the “"Accounting Firm”") which shall provide detailed supporting calculations both to the Company and You the Executive within 15 business days of the receipt of notice from You the Executive or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company or any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G of the Code), You the Executive shall appoint another nationally recognized accounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and Youthe Executive.