Common use of Modified Cutback Clause in Contracts

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employee, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee to the Excise Tax, the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($1) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee after application of the above reduction would exceed the after-tax value of the amounts received without application of the reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, and excise taxes applicable to the amount. Subject to the next sentence, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of EmployeeExecutive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless Executive shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, any such notice consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):409A.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of EmployeeExecutive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless Executive shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, any such notice consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, provided that no such reduction or elimination shall apply to any non-qualified nonqualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in a manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):409A.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employeethe Executive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee the Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided provided, that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee the Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federalFederal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject to If a reduction in the next sentenceParachute Payments is required hereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):409A.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employeethe Holder, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement Grant Notice or otherwise (collectively, the “Parachute Payments”) would subject Employee the Holder to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee the Holder after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless the Holder shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, which notice shall be consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, then the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating accelerated vesting of stock options or similar awards, then reducing or eliminating any cash severance benefits payments (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A409A of the Code) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):Code.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employee, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee to the Excise Tax, the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($1) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee after application of the above reduction would exceed the after-tax value of the amounts received without application of the reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, and excise taxes applicable to the amount. Subject to the next sentence, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-service- based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the payment in manner maimer that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):

Modified Cutback. If any payment, benefit benefit, or distribution of any type to or for the benefit of Employeethe Holder, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement Grant Notice or otherwise (collectively, the “Parachute Payments”) would subject Employee the Holder to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee the Holder after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless the Holder shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, which notice shall be consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, then the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating accelerated vesting of stock options or similar awards, then reducing or eliminating any cash severance benefits payments (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A409A of the Code) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in a manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):Code.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employeethe Executive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee the Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided provided, that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee the Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federalFederal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject to If a reduction in the next sentenceParachute Payments is required hereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in a manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):409A.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of EmployeeExecutive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless Executive shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, any such notice consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):qualified

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employee, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee to the Excise Tax, the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($1) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee after application of the above reduction would exceed the after-tax value of the amounts received without application of the reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, and excise taxes applicable to the amount. Subject to the next sentence, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “"Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):