Rosetta Stone 2014 Annual Report Download - page 194

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.
(c) The Accounting Firm engaged to make the determinations hereunder shall provide its calculations, together with
detailed supporting documentation, to the Company and Eligible Employee within fifteen (15) business days after the date on which
right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company
or Executive. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the
Company and Executive.
14. Indemnification.
During and following the employment period, the Company shall indemnify Executive and hold Executive harmless from and
against any claim, loss or cause of action arising from or out of Executive’s performance as an officer, director or employee of the
Company or any of its Affiliates or in any other capacity, including any fiduciary capacity, in which Executive serves at the request of
Company to the maximum extent permitted by applicable law and the Company’s By-Laws. Expenses incurred in defending or
investigating a threatened or pending action, suit or proceeding shall be paid directly by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of Executive to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Company. To the extent that the Company reduces the
indemnity rights provided for under its By-Laws after execution of this Agreement, the Company’s indemnity obligations hereunder
shall be unaffected (to the extent permitted by applicable law).
15. Section 409A.
Although the Company does not guarantee to Executive any particular tax treatment relating to the payments and benefits
under this Agreement, the parties acknowledge that this Agreement is intended to comply with, or be exempt from, the requirements of
Section 409A.
For purposes of this Agreement, a termination of employment will mean a “separation from service” as defined in Section
409A, where required for compliance with Section 409A.
With regard to any provision of this Agreement that provides for reimbursement of costs and expenses or in-kind benefits,
except as permitted by Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange
for another benefit; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall
not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; and (iii) such payments
shall be made on or before the last day of the service provider’s taxable year following the taxable year in which the expense was
incurred.
Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall
be made within sixty (60) days after termination”), the actual date of payment within the specified period shall be within the sole
discretion of the Company.
[Signature pages follow]