Common use of 280G Modified Cap Clause in Contracts

280G Modified Cap. (i) Notwithstanding anything in this Agreement to the contrary, if the aggregate amount of the benefits and payments under this Agreement, and other payments and benefits which the Employee has the right to receive from the Company (including the value of any equity rights which become vested upon a Change of Control) (the “Total Payments”)) would constitute a “parachute payment” as defined in Code Section 280G(b)(2), the Employee shall receive the Total Payments unless the (a) after-tax amount that would be retained by the Employee (after taking into account all federal, state and local income taxes payable by the Employee and the amount of any excise taxes payable by the Employee under Code Section 4999 that would be payable by the Employee (the “Excise Taxes”)) if the Employee were to receive the Total Payments has a lesser aggregate value than (b) the after-tax amount that would be retained by the Employee (after taking into account all federal, state and local income taxes payable by the Employee) if the Employee were to receive the Total Payments reduced to the largest amount as would result in no portion of the Total Payments being subject to Excise Taxes (the “Reduced Payments”), in which case the Employee shall be entitled only to the Reduced Payments. (ii) The determination of whether Section 3(f) applies, and the calculation of the amount of the Reduced Payments, if applicable, shall be performed by an accounting firm selected by the Company (the “Accounting Firm”). Such reduction shall be accomplished by first reducing all cash payments in the order they would otherwise be paid, and then reducing any equity grant the vesting of which was accelerated by reason of a change of control (as defined in the applicable award agreements or plans), with equity grants subject to performance-based vesting reduced first, and then equity grants subject to time-based vesting reduced in the reverse order that they would otherwise have vested. The Accounting Firm shall provide detailed supporting calculations both to the Company and the Employee within fifteen (15) business days of the receipt of notice from the Employee that there has been a payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company.

280G Modified Cap. (i) Notwithstanding anything in this Agreement to the contrary, if the aggregate amount of the benefits and payments under this Agreement, and other payments and benefits which the Employee has the right to receive from the Company (including the value of any equity rights which become vested upon a Change change of Controlcontrol (as defined in the applicable award agreements or plans)) (the “Total Payments”)) would constitute a “parachute payment” as defined in Code Section 280G(b)(2), the Employee shall receive the Total Payments unless the (a) after-tax amount that would be retained by the Employee (after taking into account all federal, state and local income taxes payable by the Employee and the amount of any excise taxes payable by the Employee under Code Section 4999 that would be payable by the Employee (the “Excise Taxes”)) if the Employee were to receive the Total Payments has a lesser aggregate value than (b) the after-tax amount that would be retained by the Employee (after taking into account all federal, state and local income taxes payable by the Employee) if the Employee were to receive the Total Payments reduced to the largest amount as would result in no portion of the Total Payments being subject to Excise Taxes (the “Reduced Payments”), in which case the Employee shall be entitled only to the Reduced Payments. (ii) . The determination of whether Section 3(f4(e) applies, and the calculation of the amount of the Reduced Payments, if applicable, shall be performed by an accounting firm selected by the Company (the “Accounting Firm”). Such reduction shall be accomplished by first reducing all cash payments in the order they would otherwise be paid, and then reducing any equity grant the vesting of which was accelerated by reason of a change of control (as defined in the applicable award agreements or plans), with equity grants subject to performance-based vesting reduced first, and then equity grants subject to time-based vesting reduced in the reverse order that they would otherwise have vested. The Accounting Firm shall provide detailed supporting calculations both to the Company and the Employee within fifteen (15) business days of the receipt of notice from the Employee that there has been a payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change change of Controlcontrol, the Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company.

280G Modified Cap. (i) 4.7.1 Notwithstanding anything in this Agreement to the contrary, if the aggregate amount of the benefits and payments under this Agreement, and other payments and benefits which the Employee Executive has the right to receive from the Company (including the value of any equity rights which become vested upon a Change of Controlin Control or Corporate Transaction) (each, a “Payment” and, collectively, the “Total Payments”)) , would constitute a “parachute payment” as defined in Code Section section 280G(b)(2)) of the Code, the Employee Executive shall receive the Total Payments unless the (a) after-tax amount that would be retained by the Employee Executive (after taking into account all federal, state and local income and employment taxes payable by the Employee Executive and the amount of any excise taxes payable by the Employee Executive under section 4999 of the Code Section 4999 that would be payable by the Employee Executive (the “Excise Taxes”)) if the Employee were to receive the Total Payments has a lesser aggregate value than (b) the after-tax amount that would be retained by the Employee Executive (after taking into account all federal, state and local income and employment taxes payable by the EmployeeExecutive) if the Employee Executive were to receive the Total Payments reduced to the largest amount as would result in no portion of the Total Payments being subject to Excise Taxes (the “Reduced Payments”), in which case the Employee Executive shall be entitled only to the Reduced Payments. (ii) 4.7.2 The determination of whether Section 3(f) 4.7.1 applies, and the calculation of the amount of the Reduced Payments, if applicable, shall be performed by an a nationally recognized certified public accounting firm selected as may be designated by the Company (the “Accounting Firm”). Such reduction shall be accomplished by first reducing all cash payments in ) and reasonably acceptable to the order they would otherwise be paid, and then reducing any equity grant the vesting of which was accelerated by reason of a change of control (as defined in the applicable award agreements or plans), with equity grants subject to performance-based vesting reduced first, and then equity grants subject to time-based vesting reduced in the reverse order that they would otherwise have vestedExecutive. The Accounting Firm shall provide detailed supporting calculations to both to the Company and the Employee Executive within fifteen (15) business days of the receipt of notice from the Employee Executive that there has been a paymentPayment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. 4.7.3 If the Executive is to receive Reduced Payments and subject to Section 10.3, the Total Payments payable will be reduced or eliminated in the following order: (1) cash payments, (2) taxable benefits, (3) nontaxable benefits and (4) accelerated vesting of equity awards. 4.7.4 It is possible that, after the determinations and selections made pursuant to this Section 4.7, the Executive will receive Total Payments that are, in the aggregate, either more or less than the amount provided under Section 4.7.1 (hereafter referred to as an “Excess Payment” or “Underpayment”, respectively). If it is established, pursuant to a final non-appealable judgment, that an Excess Payment has been made, then the Executive shall promptly repay the Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in and under section 1274(d) of the Code) from the date of the Executive's receipt of such Excess Payment until the date of such repayment. In the event that it is finally determined (x) by a court of competent jurisdiction or the Internal Revenue Service or (y) by the Accounting Firm upon request by either the Company or the Executive, that an Underpayment has occurred, the Company shall promptly pay an amount equal to the Underpayment to the Executive (but in any event within ten days of such determination), together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the Executive had the provisions of Section 4.7.1 not been applied until the date of payment.

280G Modified Cap. (i) 4.4.1 Notwithstanding anything in this Agreement to the contrary, if the aggregate amount of the benefits and payments under this Agreement, and other payments and benefits which the Employee Executive has the right to receive from the Company (including the value of any equity rights which become vested upon a Change of in Control) (the “Total Payments”)) would constitute a “parachute payment” as defined in Code Section 280G(b)(2), the Employee Executive shall receive the Total Payments unless the (a) after-tax amount that would be retained by the Employee Executive (after taking into account all federal, state and local income taxes payable by the Employee Executive and the amount of any excise taxes payable by the Employee Executive under Code Section 4999 that would be payable by the Employee Executive (the “Excise Taxes”)) if the Employee Executive were to receive the Total Payments has a lesser aggregate value than (b) the after-tax amount that would be retained by the Employee Executive (after taking into account all federal, state and local income taxes payable by the EmployeeExecutive) if the Employee Executive were to receive the Total Payments reduced to the largest amount as would result in no portion of the Total Payments payments being subject to Excise Taxes (the “Reduced Payments”), in which case the Employee Executive shall be entitled only to the Reduced Payments. (ii) 4.4.2 The determination of whether Section 3(f) 4.4.1 applies, and the calculation of the amount of the Reduced Payments, if applicable, shall be performed by an PricewaterhouseCoopers LLP or such other nationally recognized certified public accounting firm selected as may be designated by the Company Executive (the “Accounting Firm”). Such reduction shall be accomplished by first reducing all cash payments in the order they would otherwise be paid, and then reducing any equity grant the vesting of which was accelerated by reason of a change of control (as defined in the applicable award agreements or plans), with equity grants subject to performance-based vesting reduced first, and then equity grants subject to time-based vesting reduced in the reverse order that they would otherwise have vested. The Accounting Firm shall provide detailed supporting calculations both to the Company and the Employee Executive within fifteen (15) business days of the receipt of notice from the Employee Executive that there has been a paymentPayment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. 4.4.3 If the Executive is to receive Reduced Payments, the Total Payments payable will be reduced or eliminated in the following order: (1) taxable benefits (2), cash payments, (3) nontaxable benefits and (4) accelerated vesting of equity awards.

280G Modified Cap. (i) 4.4.1 Notwithstanding anything in this Agreement to the contrary, if the aggregate amount of the benefits and payments under this Agreement, and other payments and benefits which the Employee Executive has the right to receive from the Company (including the value of any equity rights which become vested upon a Change of in Control) (the “Total Payments”)) would constitute a “parachute payment” as defined in Code Section 280G(b)(2), the Employee Executive shall receive the Total Payments unless the (a) after-tax amount that would be retained by the Employee Executive (after taking into account all federal, state and local income taxes payable by the Employee Executive and the amount of any excise taxes payable by the Employee Executive under Code Section 4999 that would be payable by the Employee Executive (the “Excise Taxes”)) if the Employee Executive were to receive the Total Payments has a lesser aggregate value than (b) the after-tax amount that would be retained by the Employee Executive (after taking into account all federal, state and local income taxes payable by the EmployeeExecutive) if the Employee Executive were to receive the Total Payments reduced to the largest amount as would result in no portion of the Total Payments payments being subject to Excise Taxes (the “Reduced Payments”), in which case the Employee Executive shall be entitled only to the Reduced Payments. (ii) 4.4.2 The determination of whether Section 3(f) 4.4.1 applies, and the calculation of the amount of the Reduced Payments, if applicable, shall be performed by an PricewaterhouseCoopers LLP or such other nationally recognized certified public accounting firm selected as may be designated by the Company Executive (the “Accounting Firm”). Such reduction shall be accomplished by first reducing all cash payments in the order they would otherwise be paid, and then reducing any equity grant the vesting of which was accelerated by reason of a change of control (as defined in the applicable award agreements or plans), with equity grants subject to performance-based vesting reduced first, and then equity grants subject to time-based vesting reduced in the reverse order that they would otherwise have vested. The Accounting Firm shall provide detailed supporting calculations both to the Company and the Employee Executive within fifteen (15) business days of the receipt of notice from the Employee Executive that there has been a paymentPayment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. 4.4.3 If the Executive is to receive Reduced Payments, the Total Payments payable will be reduced or eliminated in the following order: (1) cash payments, (2) taxable benefits, (3) nontaxable benefits and (4) accelerated vesting of equity awards.

280G Modified Cap. (i) 4.7.1 Notwithstanding anything in this Agreement to the contrary, if the aggregate amount of the benefits and payments under this Agreement, and other payments and benefits which the Employee Executive has the right to receive from the Company (including the value of any equity rights which become vested upon a Change of Controlin Control or Corporate Transaction) (each, a “Payment” and, collectively, the “Total Payments”)) , would constitute a “parachute payment” as defined in Code Section section 280G(b)(2)) of the Code, the Employee Executive shall receive the Total Payments unless the (a) after-tax amount that would be retained by the Employee Executive (after taking into account all federal, state and local income taxes payable by the Employee Executive and the amount of any excise taxes payable by the Employee Executive under section 4999 of the Code Section 4999 that would be payable by the Employee Executive (the “Excise Taxes”)) if the Employee were to receive the Total Payments has a lesser aggregate value than (b) the after-tax amount that would be retained by the Employee Executive (after taking into account all federal, state and local income taxes payable by the EmployeeExecutive) if the Employee Executive were to receive the Total Payments reduced to the largest amount as would result in no portion of the Total Payments being subject to Excise Taxes (the “Reduced Payments”), in which case the Employee Executive shall be entitled only to the Reduced Payments. (ii) 4.7.2 The determination of whether Section 3(f) 4.7.1 applies, and the calculation of the amount of the Reduced Payments, if applicable, shall be performed by an a nationally recognized certified public accounting firm selected as may be designated by the Company (the “Accounting Firm”). Such reduction shall be accomplished by first reducing all cash payments in ) and reasonably acceptable to the order they would otherwise be paid, and then reducing any equity grant the vesting of which was accelerated by reason of a change of control (as defined in the applicable award agreements or plans), with equity grants subject to performance-based vesting reduced first, and then equity grants subject to time-based vesting reduced in the reverse order that they would otherwise have vestedExecutive. The Accounting Firm shall provide detailed supporting calculations to both to the Company and the Employee Executive within fifteen (15) business days of the receipt of notice from the Employee Executive that there has been a paymentPayment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. 4.7.3 If the Executive is to receive Reduced Payments and subject to Section 10.3, the Total Payments payable will be reduced or eliminated in the following order: (1) cash payments, (2) taxable benefits, (3) nontaxable benefits and (4) accelerated vesting of equity awards. 4.7.4 It is possible that, after the determinations and selections made pursuant to this Section 4.7, the Executive will receive Total Payments that are, in the aggregate, either more or less than the amount provided under Section 4.7.1 (hereafter referred to as an “Excess Payment” or “Underpayment”, respectively). If it is established, pursuant to a final non-appealable judgment, that an Excess Payment has been made, then the Executive shall promptly repay the Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in and under section 1274(d) of the Code) from the date of the Executive’s receipt of such Excess Payment until the date of such repayment. In the event that it is finally determined (x) by a court of competent jurisdiction or the Internal Revenue Service or (y) by the Accounting Firm upon request by either the Company or the Executive, that an Underpayment has occurred, the Company shall promptly pay an amount equal to the Underpayment to the Executive (but in any event within ten days of such determination), together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the Executive had the provisions of Section 4.7.1 not been applied until the date of payment.

280G Modified Cap. (i) Notwithstanding anything in this Agreement to the contrary, if the aggregate amount of the benefits and payments under this Agreement, and other payments and benefits which the Employee has the right to receive from the Company (including the value of any equity rights which become vested upon a Change of Control) (the “Total Payments”)) would constitute a “parachute payment” as defined in Code Section 280G(b)(2), the Employee shall receive the Total theTotal Payments unless the (a) after-tax amount that would be retained by the Employee (after taking into account all federal, state and local income taxes payable by the Employee and the amount of any excise taxes payable by the Employee under Code Section 4999 that would be payable by the Employee (the “Excise Taxes”)) if the Employee were to receive the Total Payments has a lesser aggregate value than (b) the after-tax amount that would be retained by the Employee (after taking into account all federal, state and local income taxes payable by the Employee) if the Employee were to receive the Total Payments reduced to the largest amount as would result in no portion of the Total Payments being subject to Excise Taxes (the “Reduced Payments”), in which case the Employee shall be entitled only to the Reduced Payments. (ii) The determination of whether Section 3(f) applies, and the calculation of the amount of the Reduced Payments, if applicable, shall be performed by an accounting firm selected by the Company (the “Accounting Firm”). Such reduction shall be accomplished by first reducing all cash payments in the order they would otherwise be paid, and then reducing any equity grant the vesting of which was accelerated by reason of a change of control (as defined in the applicable award agreements or plans), with equity grants subject to performance-based vesting reduced first, and then equity grants subject to time-based vesting reduced in the reverse order that they would otherwise have vested. The Accounting Firm shall provide detailed supporting calculations both to the Company and the Employee within fifteen (15) business days of the receipt of notice from the Employee that there has been a payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company.

280G Modified Cap. (i) 4.8.1 Notwithstanding anything in this Agreement to the contrary, if the aggregate amount of the benefits and payments under this Agreement, and other payments and benefits which the Employee Executive has the right to receive from the Company (including the value of any equity rights which become vested upon vested) #2318191 v3 \099999 \0001 (each, a Change of Control) (“Payment” and, collectively, the “Total Payments”)) , would constitute a “parachute payment” as defined in Code Section section 280G(b)(2)) of the Code, the Employee Executive shall receive the Total Payments unless the (a) after-tax amount that would be retained by the Employee Executive (after taking into account all federal, state and local income taxes payable by the Employee Executive and the amount of any excise taxes payable by the Employee Executive under section 4999 of the Code Section 4999 that would be payable by the Employee Executive (the “Excise Taxes”)) if the Employee were to receive the Total Payments has a lesser aggregate value than (b) the after-tax amount that would be retained by the Employee Executive (after taking into account all federal, state and local income taxes payable by the EmployeeExecutive) if the Employee Executive were to receive the Total Payments reduced to the largest amount as would result in no portion of the Total Payments being subject to Excise Taxes (the “Reduced Payments”), in which case the Employee Executive shall be entitled only to the Reduced Payments. (ii) 4.8.2 The determination of whether Section 3(f) 4.8.1 applies, and the calculation of the amount of the Reduced Payments, if applicable, shall be performed by an a nationally recognized certified public accounting firm selected as may be designated by the Company (the “Accounting Firm”). Such reduction shall be accomplished by first reducing all cash payments in ) and reasonably acceptable to the order they would otherwise be paid, and then reducing any equity grant the vesting of which was accelerated by reason of a change of control (as defined in the applicable award agreements or plans), with equity grants subject to performance-based vesting reduced first, and then equity grants subject to time-based vesting reduced in the reverse order that they would otherwise have vestedExecutive. The Accounting Firm shall provide detailed supporting calculations to both to the Company and the Employee Executive within fifteen (15) business days of the receipt of notice from the Employee Executive that there has been a paymentPayment, or such earlier time as is requested by the Company. In Company in a form that can be relied upon for tax filing purposes and shall include a valuation of the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder)noncompetition provisions herein. All fees and expenses of the Accounting Firm shall be borne solely by the Company. 4.8.3 If the Executive is to receive Reduced Payments and subject to Section 9.4, the Total Payments payable will be reduced or eliminated in the following order: (1) cash payments, (2) taxable benefits, (3) nontaxable benefits and (4) accelerated vesting of equity awards in a manner that maximizes the amount to be received by the Executive. 4.8.4 It is possible that, after the determinations and selections made pursuant to this Section 4.8, the Executive will receive Total Payments that are, in the aggregate, either more or less than the amount provided under Section 4.8.1 (hereafter referred to as an “Excess Payment” or “Underpayment”, respectively). If it is established, pursuant to a final non-appealable judgment, that an Excess Payment has been made, then the Executive shall promptly repay the Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in and under section 1274(d) of the Code) from the date of the Executive’s receipt of such Excess Payment until the date of such repayment. In the event that it is finally determined (x) by a court of competent jurisdiction or the Internal Revenue Service or (y) by the Accounting Firm upon request by either the Company or the Executive, that an Underpayment has occurred, the Company shall promptly pay an amount equal to the Underpayment to the Executive (but in any event within ten days of such determination), together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the Executive had the provisions of Section 4.8.1 not been applied until the date of payment.

280G Modified Cap. (i) Notwithstanding anything in this Agreement to the contrary, if the aggregate amount of the benefits and payments under this Agreement, and other payments and benefits which the Employee has the right to receive from the Company (including the value of any equity rights which become vested upon a Change of Control) (the “Total Payments”)) would constitute a “parachute payment” as defined in Code Section 280G(b)(2), the Employee shall receive the Total Payments unless the (a) after-tax amount that would be retained by the Employee (after taking into account all federal, state and local income taxes payable by the Employee and the amount of any excise taxes payable by the Employee under Code Section 4999 that would be payable by the Employee (the “Excise Taxes”)) if the Employee were to receive the Total Payments has a lesser aggregate value than (b) the after-tax amount that would be retained by the Employee (after taking into account all federal, state and local income taxes payable by the Employee) if the Employee were to receive the Total Payments reduced to the largest amount as would result in no portion of the Total Payments being subject to Excise Taxes (the “Reduced Payments”), in which case the Employee shall be entitled only to the Reduced Payments. (ii) The determination of whether Section 3(f) applies, and the calculation of the amount of the Reduced Payments, if applicable, shall be performed by an accounting firm selected by the Company (the “Accounting Firm”). Such reduction shall be accomplished by first reducing all cash payments in the order they would otherwise be paid, and then reducing any equity grant the vesting of which was accelerated by reason of a change of control (as defined in the applicable award agreements or plans), with equity grants subject to performance-based vesting reduced first, and then equity grants subject to time-based vesting reduced in the reverse order that they would otherwise have vested. The Accounting Firm shall provide detailed supporting calculations both to the Company and the Employee within fifteen (15) business days of the receipt of notice from the Employee that there has been a payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). , All fees and expenses of the Accounting Firm shall be borne solely by the Company.