Common use of Payment Limitation Clause in Contracts

Payment Limitation. Notwithstanding any other provision of this Agreement to the contrary, if the benefits and payments provided under this Agreement, either alone or together with other benefits and payments which the Employee has the right to receive either directly or indirectly from the Company or any of its affiliates, would constitute an excess parachute payment (the “Excess Payment”) under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee hereby agrees that the benefits and payments provided under this Agreement shall be reduced (but not below zero) by the amount necessary to prevent any such benefits and payments to the Employee from constituting an Excess Payment; provided, however, that such reduction shall be made only if, by reason of such reduction, the Employee’s net after-tax economic benefit shall exceed the net after-tax economic benefit to the Employee if such reduction were not made. All determinations required to be made under this Section Two, and the assumptions to be utilized in arriving at such determination, shall be made by the certified public accounting firm used for auditing purposes by the Company immediately prior to the date of the Employee’s termination of employment or, if the parties determine that the certified public accounting firm used for auditing purposes by the Company immediately prior to the date of termination cannot make such determination because of legal restrictions, the parties shall agree on a different certified public accounting firm (such certified public accounting firm is hereinafter referred to as the “Accounting Firm”), which shall promptly provide detailed supporting calculations both to the Company and the Employee. The Company shall pay all fees and expenses of the Accounting Firm.