Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's benefits under Section 3 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excis
...e tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
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Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii)
but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the
Code, Code (the "Excise Tax"), then Executive's benefits under
Section 3 will this Agreement shall be either: (a)
delivered Delivered in
full, full or (b)
delivered Delivered as to such lesser ext
...ent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. 6 Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), "Accountants"), whose determination will shall be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. Section 5. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. In the event that a reduction is required, the reduction shall be applied first to any benefits that are not subject to Section 409A of the Code, and then shall be applied to benefits (if any) that are subject to Section 409A of the Code, with the benefits payable latest in time subject to reduction first.
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Limitation on Payments.
The receipt of any severance benefits pursuant to Section 3 will be subject to Employee signing and not revoking a separation agreement and release of claims in a form acceptable to the Company on or before the deadline contained in such agreement. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to
Executive the Employee (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Internal Revenue Code of 1986 as amend...ed (the "Code") and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's the Employee's severance benefits under Section 3 will 3(a)(i) shall be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, amounts taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive the 2 Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive the Employee otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by the Company's independent public accountants Accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), Control, whose determination will shall be conclusive and binding upon Executive the Employee and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will the Employee shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 will occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid or provided to Employee. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant for Employee's equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis.
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Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii) but for this Section
5, 4, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's
severance benefits under Section
3 4(a)(i) will be
either: (a) either:(a) delivered in full,
or (b) or(b) delivered as to such lesser extent which would result in no port
...ion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur the payments and benefits shall be reduced in the following order: order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the "parachute payments" occurs): (A) a pro rata reduction of (i) cash payments; payments that are subject to Section 409A as deferred compensation and (ii) cash payments not subject to Section 409A of the Code; (B) a pro rata cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of (i) accelerated vesting of Equity Awards; stock and other equity-based awards that are subject to Section 409A of the Code as deferred compensation and (ii) stock and other equity-based awards not subject to Section 409A; and (C) a pro rata reduction of (i) employee benefits. benefits that are subject to Section 409A as deferred compensation and (ii) employee benefits not subject to Section 409A of the Code. In the event that acceleration of vesting of Equity Award equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 4 will be made in writing by the Company's an independent public accountants firm immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 4, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. 4.
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Limitation on Payments. In the event that the severance
and or change in control-related or other
payments or benefits provided for in this Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the Code, and (ii) but for this Section
5, 9, would be subject to the excise tax imposed by Section 4999 of the Code, then
Executive's such payments or benefits
under Section 3 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which wo
...uld result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever Exhibit 10.1whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance or change in control-related or other payments or benefits, notwithstanding that all or some portion of such payments or benefits may be taxable under Section 4999 of the Code. If a reduction in severance and and/or other payments or benefits constituting "parachute payments" is necessary so that payments or benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; cancellation payments, which will occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and event triggering such excise tax will be the first cash payment to be reduced; (ii) reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting equity awards, which will be cancelled occur in the reverse order of the date of grant for such stock awards (i.e., the vesting of Executive's Equity Awards. the most recently granted stock awards will be reduced first); and (iii) reduction of other benefits paid or provided to Executive, which will occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced. If more than one equity award was made to Executive on the same date of grant, all such awards will have their acceleration of vesting reduced pro rata. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 9 will be made in writing by the Company's a nationally recognized firm of independent public accountants immediately prior to a Change of Control or such other person or entity to which selected by the parties mutually agree Company (the "Firm"), "Accountants"), whose determination will be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 9, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. Section 9. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 9.
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Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to
Executive Employee (i) constitute "parachute payments" within the meaning of Section 280G of the Code, and (ii)
but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the
Code, Code (the "Excise Tax"), then
Executive's Employee's benefits under
Section 3 will this Agreement shall be
either: either (a)
delivered Delivered in full, or
-9- (b) delivered as to such
... lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; payments, cancellation of Equity Awards equity awards granted "contingent on within the twelve (12) month period prior to a "change in control" (as determined under Code Section 280G) that are deemed to have been granted contingent upon the change in ownership or control" within the meaning of control (as determined under Code Section 280G; 280G), cancellation of accelerated vesting of Equity Awards; and equity awards, reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive Employee otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), "Accountants"), whose determination will shall be conclusive and binding upon Executive Employee and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, Section, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and Executive will Employee shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Section.
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Limitation on Payments. In the event that the
severance payments, consideration, compensation and
other benefits provided for in this Agreement
or otherwise payable together with the payments, consideration, compensation and benefits under all other plans, arrangements and agreements applicable to
Executive Employee (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii) but for this Section
5, 14, would be subject to the excise tax imposed by Section 4999 of the Code, then
Exe...cutive's Employee's payments, consideration, compensation and benefits under Section 3 this Agreement will be either: (a) delivered in full, or 6 (b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive Employee on an after-tax basis, of the greatest amount of payments, consideration, compensation and benefits, notwithstanding that all or some portion of such payments, consideration, compensation and benefits may be taxable under Section 4999 of the Code. If a reduction in severance payments, consideration, compensation and other benefits constituting "parachute payments" is necessary so that benefits parachute payments are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of Equity Awards awards granted "contingent on a change in ownership or control" within (within the meaning of Code Section 280G; 280G), (iii) cancellation of accelerated vesting of Equity Awards; and equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of Equity Award equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. equity awards. Unless the Company and Executive Employee otherwise agree in writing, any determination required under this Section 5 14 will be made in writing by an independent accounting firm designated by the Company's independent public accountants immediately prior Company that is reasonably acceptable to a Change of Control or such other person or entity to which the parties mutually agree Employee (the "Firm"), "Accountants"), whose determination will be conclusive and binding upon Executive Employee and the Company. Company for all purposes. The Company shall cause such determination to be made before the due date for payment of any amounts that become payable pursuant to Section 14 hereof. For purposes of making the calculations required by this Section 5, 14, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive Employee will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may incur in connection with any calculations contemplated by this Section 5. 14.
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Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the Code, and (ii) but for this Section
5, 7, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's benefits under Section
3 4 will be
either: (a) either:(a) delivered in full,
or (b) or(b) delivered as to such lesser extent which would result in no portion of such benefits
...being subject to excise tax under Section 4999 of the Code, whichever Code,whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; payments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the excise tax will be the first cash payment to be reduced); (ii) cancellation of Equity Awards awards granted "contingent on a change in ownership or control" within (within the meaning of Code Section 280G; cancellation 280G), (iii) reduction of the accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled full-value equity awards in the reverse order of the date of grant of Executive's Equity Awards. the awards (i.e., the vesting of the most recently granted full-value awards will be cancelled first); (iv) reduction of the accelerated vesting of stock options and stock appreciation rights in the reverse order of date of grant of the awards (i.e., the vesting of the most Aerohive – Executive Change of Control (non-CEO)(A&R A Amrod 4-1-2018)-7- recently granted awards will be cancelled first); and (v) reduction of employee benefits in reverse chronological order (i.e., the benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first benefit to be reduced). In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless and only to the extent the Company and Executive otherwise agree in writing, any determination required under this Section 5 7 will be made in writing by a nationally recognized firm (the "Firm") reasonably agreed upon between the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), parties, whose determination will be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 7, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs for payment of the Firm may incur Firm's services in connection with any calculations contemplated by this Section 5. 7.
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Limitation on Payments. In the event that the severance
and or other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii) but for this Section
5, 16, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's
severance or other benefits
under Section 3 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such
...benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance or change in control-related benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; cancellation payments, which shall occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and event triggering such excise tax will be the first cash payment to be reduced; (ii) reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled equity awards, which shall occur in the reverse order of the date of grant for such stock awards (i.e., the vesting of Executive's Equity Awards. the most recently granted stock awards will be reduced first); and (iii) reduction of other benefits paid or provided to the Executive, which shall occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced. If more than one equity award was made to the Executive on the same date of grant, all such awards shall have their acceleration of vesting reduced pro rata. In no event will shall the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 16 will be made in writing by the Company's a nationally recognized firm of independent public accountants immediately prior to a Change of Control or such other person or entity to which selected by the parties mutually agree Company (the "Firm"), "Accountants"), whose determination will be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 16, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely -10- on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 16.
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Limitation on Payments. In the event that the severance
and other or change in control-related benefits provided for in this Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii) but for this Section
5, 10, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's
severance or change in control-related benefits under
Section 3 this Agreement or otherwise will be either: (a) delivered in full, or
7 (b)
...delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance or change in control-related benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; cancellation payments, which shall occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; event triggering such excise tax will be the first cash payment to be reduced; (ii) cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled equity awards, which shall occur in the reverse order of the date of grant for such stock awards (i.e., the vesting of Executive's Equity Awards. the most recently granted stock awards will be reduced first); and (iii) reduction of employee benefits, which shall occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. In no event will shall the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 10 will be made in writing by the Company's a nationally recognized firm of independent public accountants immediately prior to a Change of Control or such other person or entity to which selected by the parties mutually agree Company (the "Firm"), "Accountants"), whose determination will be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 10, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 10.
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Limitation on Payments. In the event that the severance
and other or change in control-related benefits provided for in this Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii) but for this Section
5, 10, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's
severance or change in control-related benefits under
Section 3 this Agreement or otherwise will be either: (a) delivered in full, or (b) de
...livered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance or change in control-related benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; cancellation payments, which shall occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; event triggering such excise tax will be the first cash payment to be reduced; (ii) cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled equity awards, 6 which shall occur in the reverse order of the date of grant for such stock awards (i.e., the vesting of Executive's Equity Awards. the most recently granted stock awards will be reduced first); and (iii) reduction of employee benefits, which shall occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. In no event will shall the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 10 will be made in writing by the Company's a nationally recognized firm of independent public accountants immediately prior to a Change of Control or such other person or entity to which selected by the parties mutually agree Company (the "Firm"), "Accountants"), whose determination will be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 10, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 10.
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