Common use of Provisions Relating to Parachute Payments Clause in Contracts

Provisions Relating to Parachute Payments. (a) Anything in this Agreement to the contrary notwithstanding, if payments and benefits to or for the benefit of the Executive, whether pursuant to this Agreement or otherwise, would (in the determination of the independent nationally recognized certified accounting firm retained by the Company for this purpose (the “Accounting Firm”)) result in total Parachute Payments (as defined in Subsection (d)(i) below) to the Executive with a Present Value (as defined in Subsection (d)(ii) below) equal to or greater than one hundred percent (100%) of the Parachute Payment Limit, then the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. The Executive may then elect, in his sole discretion, which and how much of the aggregate payments or benefits payable to (or for the benefit of) the Executive shall be eliminated or reduced as long as after such election the Present Value of the aggregate Parachute Payments is equal to or less than the Parachute Payment Limit minus One ($1.00) Dollar, provided that the Executive shall not be permitted to elect to reduce any payment or benefit that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A. The Executive shall advise the Company in writing of his or her election within ten (10) days of receipt of such notice. If no such election is made by the Executive within such ten (10) day period or if the election by the Executive does not sufficiently reduce the payments or benefits so that the Present Value of the aggregate Parachute Payments is equal to or less than the Parachute Payment Limit minus One (1.00) Dollar, the Company shall reduce the payments or benefits (or the remaining payments or benefits) in the following order so that after the Executive’s election (if timely made) and the Company’s reduction, the Present Value of the aggregate Parachute Payments is equal to the Parachute Payment Limit minus One ($1.00) Dollar: (1) by reducing amounts payable pursuant to Section 5 (e) of this Agreement, then (2) by reducing amounts payable pursuant to Section 5(b)(1) of this Agreement, then (3) by reducing amounts payable in respect of equity awards subject to performance-based vesting criteria, then (4) by reducing amounts payable pursuant to Section 5(d) of this Agreement, then (5) by reducing amounts payable pursuant to Section 5(c) of this Agreement, and then (6) by reducing amounts payable in respect of equity awards subject to time-based vesting criteria. All determinations made by the Accounting Firm under this Section 6 shall be binding upon the Company and the Executive and shall be made within sixty (60) days of the Executive’s Termination Date.