Common use of 280G Payments Clause in Contracts

280G Payments. (a) In the event that the severance benefits provided for in this Agreement (the “Total Payments”) constitute “Parachute Payments” within the meaning of Code Section 280G , the excess of the Parachute Payments over three times the five year average of compensation as computed under Code Section 280G (such excess is referred to as the “280G Excess”) is greater than one hundred thousand dollars ($100,000) (the “Valley”) and the Employee is subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Company shall pay to the Employee an additional amount or amounts (the “Gross-Up Payment”) such that the net amount retained by the Employee, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and the Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. If the 280G Excess is less than the Valley, the Employee may elect to either have the amount of Employee’s payments and benefits hereunder reduced to the point no Excise Tax is due or may receive all benefits hereunder and pay the Excise Tax without the benefit of any Gross-Up Payment from the Company. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 4 shall be made in writing by the Company’s independent tax advisors (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4, including by reason of any state, federal or other government audit of such calculations.

280G Payments. (a) In the event the Company determines in good faith that the severance any payments, entitlements or benefits (whether made or provided for in pursuant to this Agreement (or otherwise) provided to the “Total Payments”) Executive constitute “Parachute Paymentsparachute payments” within the meaning of Code Section 280G , the excess of the Parachute Payments over three times the five year average Internal Revenue Code of compensation 1986, as computed under Code Section 280G (such excess is referred to as the “280G Excess”) is greater than one hundred thousand dollars ($100,000) amended (the “ValleyCode”) ), and the Employee is may be subject to the an excise tax imposed by pursuant to Section 4999 of the Code Code, then, if the Executive would be placed in a better after-tax position, the Executive’s “parachute payments” will be reduced to an amount determined by the Company in good faith to be the maximum amount that may be provided to the Executive without resulting in any portion of such “parachute payment” being subject to such excise tax. The payment reduction contemplated by the preceding sentence shall be implemented as follows: first, by reducing any payments to be made to the Executive under Section 10(d)(ii) and (the “Excise Tax”iii) or Section 10(e)(ii) and (iii), then the Company shall pay as applicable; second, by reducing any other cash payments to be made to the Employee an additional amount or amounts (Executive but only if the “Gross-Up Payment”) value of such that cash payments is not greater than the net amount retained parachute value of such payments; third, by cancelling the Employee, after deduction acceleration of vesting of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and the Excise Tax upon the Grossoutstanding equity-Up Payment, shall be equal based compensation awards that are subject to the Total Payments. If the 280G Excess is less than the Valleyperformance vesting, the Employee may elect to either have performance goals for which were met as of the amount Executive’s date of Employee’s payments and benefits hereunder reduced to termination or if later the point no Excise Tax is due or may receive all benefits hereunder and pay date of the Excise Tax without occurrence of the benefit change in control; fourth, by cancelling the acceleration of vesting of any Gross-Up Payment from the Company. Unless the Company and the Employee otherwise agree in writingrestricted stock or restricted stock unit awards; fifth, any determination required under this Section 4 shall be made in writing by eliminating the Company’s independent tax advisors (payment of the “Accountants”)cost of any post-termination continuation of medical and dental benefits for the Executive and his eligible dependents and sixth, whose determination by cancelling the acceleration of vesting of any stock options or stock appreciation rights. In the case of the reductions to be made pursuant to each of the above-mentioned clauses, the payment and/or benefit amounts to be reduced and the acceleration of vesting to be cancelled shall be conclusive reduced or cancelled in the inverse order of their originally scheduled dates of payment or vesting, as applicable, and binding upon shall be so reduced (x) only to the Employee and extent that the Company for all purposes. For purposes payment and/or benefit otherwise to be paid or the vesting of making the calculations required by this Section 4award that otherwise would be accelerated, would be treated as a “parachute payment” within the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application meaning of Section 280G and 4999 280G(b)(2)(A) of the Code. The Company , and the Employee shall furnish (y) only to the Accountants such information and documents as extent necessary to achieved the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4, including by reason of any state, federal or other government audit of such calculationsrequired reduction hereunder.