Rosetta Stone 2011 Annual Report Download - page 139

an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court
of law or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief
in order to enforce or prevent any violations of the provisions of this Agreement.
(g) Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and Executive.
(h) Business Days. If any time period for giving notice or taking action hereunder expires on a day which is a
Saturday, Sunday or holiday in the state in which the Company's chief executive office is located, the time period shall be
automatically extended to the business day immediately following, such Saturday, Sunday or holiday. The provisions of this
Section 12(h) shall not apply to determine the date an amount is payable under Section 3(c)(ii) or 6.
(i) Termination. This Agreement (except for the provisions of Sections 1, 2, 3, and 4) shall survive the termination of
Executive's employment with the Company and shall remain in full force and effect after such termination.
(j) No Waiver. A waiver by any party hereto of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy that such party would otherwise have on any future occasion. Neither failure to exercise nor
any delay in exercising on the part of any party hereto, any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative and
may be exercised singly or concurrently, and are not exclusive of any rights or remedies provided by law.
(k) Insurance. The Company, at its discretion, may apply for and procure in its own name for its own benefit life and/
or disability insurance with respect to Executive in any amount or amounts considered available provided, however, that such
procurement of insurance does not restrict the amount of insurance that Executive may obtain for her own personal use. Executive
agrees to cooperate in any medical or other examination, supply any information, and to execute and deliver any applications or other
instruments in writing as may be reasonably necessary to obtain and constitute such insurance. Executive hereby represents that she
has no reason to believe that her life is not insurable at rates now prevailing for healthy men of her age.
(l) Taxes; Withholding of Taxes on Behalf of Executive. Executive shall be solely responsible for any and all taxes
imposed on Executive by reason of any compensation and benefits provided under this Agreement, and all such compensation and
benefits shall be subject to applicable withholding. Without limiting the scope of the preceding sentence, the Company and its
Affiliates shall be entitled to deduct or withhold from any amounts owing from the Company or any of its Affiliates to Executive any
federal, state, provincial, local or foreign withholding taxes, excise taxes, or employment taxes imposed with respect to Executive's
compensation or other payments from the Company or any of its Affiliates or Executive's ownership interest in the Company,
including, but not limited to, wages, bonuses, dividends, the receipt or exercise of stock options and/or the receipt or vesting of
restricted stock.
14
(m) Waiver of Jury Trial. BOTH PARTIES TO THIS AGREEMENT AGREE THAT ANY ACTION, DEMAND, CLAIM OR
COUNTERCLAIM RELATING TO THE TERMS AND PROVISIONS OF THIS AGREEMENT, OR TO ITS BREACH, MAY BE
COMMENCED IN THE COMMONWEALTH OF VIRGINIA IN A COURT OF COMPETENT JURISDICTION. BOTH PARTIES TO THIS
AGREEMENT FURTHER AGREE THAT ANY ACTION, DEMAND, CLAIM OR COUNTERCLAIM SHALL BE RESOLVED BY A JUDGE
ALONE, AND BOTH PARTIES HEREBY WAIVE AND FOREVER RENOUNCE THAT RIGHT TO A TRIAL BEFORE A CIVIL JURY.
13. Certain Additional Payments by the Company; Code Section 280G.
(a) Anything in this Agreement to the contrary notwithstanding, if any payment or benefit Executive would receive
pursuant to this Agreement ("Payment") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code,
and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then such Payment
shall be reduced to the Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of the Payment that would
result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the
Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the
Excise Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, of the greater
amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in
payments or benefits constituting "parachute payments" is necessary so that the Payment equals the Reduced Amount, reduction shall
occur in the following order: (A) cash payments shall be reduced first and in reverse chronological order such that the cash payment
owed on the latest date following the occurrence of the event triggering such Excise Tax will be the first cash payment to be reduced;
and (B) employee benefits shall be reduced last (but only to the extent such benefits may be reduced under applicable law, including,
but not limited to the Code and the Employee Retirement Income Security Act of 1974, as amended) and 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.
(b) The determinations and calculations required hereunder shall be made by nationally recognized accounting firm
that is (i) not be serving as accountant or auditor for the person who acquires ownership or effective control or ownership of a
substantial portion of the Company's assets (within the meaning of Section 280G of the Code) or any Affiliate of such person, and
(ii) agreed upon by the Company and Executive (the "Accounting Firm") The Company shall bear all expenses with respect to the
determinations by the Accounting Firm required to be made hereunder.