Common use of 280G Provisions Clause in Contracts

280G Provisions. Notwithstanding anything in this Agreement to the contrary, if any payment, benefit or distribution Executive would receive pursuant to this Agreement or otherwise from the Company or any of its affiliates (“Payment”) would (a) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall either be (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the largest payment, notwithstanding that all or some portion of the Payment may be taxable under Section 4999 of the Code. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s 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 reasonable determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in payments and/or benefits pursuant to this Section 4.2 will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits payable to Executive. Nothing in this Section 4.2 shall require the Company or any of its affiliates to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.

280G Provisions. Notwithstanding anything in this Agreement to the contrary, if any payment, benefit payment or distribution Executive would receive pursuant to this Agreement or otherwise from the Company or any of its affiliates (“Payment”) would (a) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall either be (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the largest payment, notwithstanding that all or some portion of the Payment may be taxable under Section 4999 of the Code. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control, or such other accounting firm with similar expertise as designated by the Company before the effective date of the Change in Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s 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 reasonable good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in payments and/or benefits pursuant to this Section 4.2 will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits payable to Executive. Nothing in this Section 4.2 shall require the Company or any of its affiliates to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.

280G Provisions. Notwithstanding anything in any other provision of this Agreement or any other plan, arrangement, or agreement to the contrary, if any payment, of the payments or benefits provided or to be provided by the Company to the Participant or for the Participant’s benefit or distribution Executive would receive pursuant to the terms of this Agreement or otherwise from the Company or any of its affiliates (“PaymentCovered Payments”) would constitute parachute payments (a“Parachute Payments”) constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and would, and (b) but for this sentence, be Section 19 subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then such Payment the Covered Payments shall be payable either be (i) delivered in full, full or (ii) delivered as after reduction to such lesser the minimum extent which would result in necessary to ensure that no portion of such Payment being the Covered Payments is subject to the Excise Tax, whichever of the foregoing amounts, (i) or (ii) results in the Participant’s receipt on an after-tax basis of the greatest amount of benefits after taking into account the applicable federal, state state, local and local income foreign income, employment and excise taxes and (including the Excise Tax, results in the receipt by Executive on an after-tax basis, of the largest payment), notwithstanding that all or some portion of the Payment such benefits may be taxable under the Excise Tax. Unless the Company and the Participant otherwise agree in writing, any determination required under this Section 4999 19 shall be made in writing in good faith by a nationally recognized accounting firm (the “Accountants”). In the event of a reduction in Covered Payments hereunder, the reduction of the total payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the Code: (i) first, any cash severance payments due shall be reduced and (ii) second, any acceleration of vesting of any equity shall be deferred with the tranche that would vest last (without any such acceleration) first deferred. For purposes of making the calculations required by this Section 19, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The accounting firm engaged by Company and the Company for general audit purposes as of the day prior Participant shall furnish to the effective date of Accountants such information and documents as the Change Accountants may reasonably request in Control shall perform the foregoing calculationsorder to make a determination under this Section 19. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 19. If notwithstanding any reduction described in this Section 19, the Internal Revenue Service (“IRS”) determines that the Participant is liable for the Excise Tax as a result of the receipt of the Covered Payments, then the Participant shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that the Participant challenges the final IRS determination, a final judicial determination a portion of such amounts equal to the “Repayment Amount.” The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to the Company so that the Participant’s net after-tax proceeds with respect to any payment of the Covered Payments (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on the Covered Payments) shall be maximized. The Repayment Amount with respect to the determinations by such accounting firm required to payment of Covered Payments shall be made hereunder. The accounting firm shall provide its calculations zero if a Repayment Amount of more than zero would not result in the Participant’s net after-tax proceeds with respect to the Company payment of the Covered Payments being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, the Participant shall pay the Excise Tax. Notwithstanding any other provision of this Section 19, if (i) there is a reduction in the payment of Covered Payments as described in this Section 19, (ii) the IRS later determines that the Participant is liable for the Excise Tax, the payment of which would result in the maximization of the Participant’s net after-tax proceeds (calculated as if the Covered Payments had not previously been reduced), and Executive within fifteen (15iii) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by Participant pays the Excise Tax, then the Company or Executive) or such other time as requested by shall pay to the Company or Executive. Any reasonable determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in payments and/or benefits Participant those Covered Payments which were reduced pursuant to this Section 4.2 will occur in 19 contemporaneously or as soon as administratively possible after the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits payable to Executive. Nothing in this Section 4.2 shall require Participant pays the Company or any of its affiliates to be responsible for, or have any liability or obligation Excise Tax so that the Participant’s net after-tax proceeds with respect to, Executive’s excise tax liabilities under Section 4999 to the payment of the CodeCovered Payments are maximized.

280G Provisions. Notwithstanding anything in any other provision of this Agreement or any other plan, arrangement, or agreement to the contrary, if any payment, of the payments or benefits provided or to be provided by the Company to the Executive or for the Executive’s benefit or distribution Executive would receive pursuant to the terms of this Agreement or otherwise from the Company or any of its affiliates (“PaymentCovered Payments”) would constitute parachute payments (a“Parachute Payments”) constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and would, and (b) but for this sentenceSection 6(e), be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then such Payment the Covered Payments shall be payable either be (i) delivered in full, full or (ii) delivered as after reduction to such lesser the minimum extent which would result in necessary to ensure that no portion of such Payment being the Covered Payments is subject to the Excise Tax, whichever of the foregoing amounts, (i) or (ii) results in the Executive’s receipt on an after-tax basis of the greatest amount of benefits after taking into account the applicable federal, state state, local and local income foreign income, employment and excise taxes and (including the Excise Tax, results in the receipt by Executive on an after-tax basis, of the largest payment), notwithstanding that all or some portion of the Payment such benefits may be taxable under the Excise Tax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 4999 6(e) shall be made in writing in good faith by a nationally recognized accounting firm (the “Accountants”). In the event of a reduction in Covered Payments hereunder, the reduction of the total payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the Code: (i) first, any cash severance payments due under this Agreement shall be reduced and (ii) second, any acceleration of vesting of any equity shall be deferred with the tranche that would vest last (without any such acceleration) first deferred. For purposes of making the calculations required by this Section 6(e), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The accounting firm engaged by the Company for general audit purposes as of the day prior and Executive shall furnish to the effective date of Accountants such information and documents as the Change Accountants may reasonably request in Control shall perform the foregoing calculationsorder to make a determination under this Section 6(e). The Company shall bear all expenses costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6(e). If notwithstanding any reduction described in this Section 6(e), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of the Covered Payments, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination a portion of such amounts equal to the “Repayment Amount.” The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net after-tax proceeds with respect to any payment of the Covered Payments (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on the Covered Payments) shall be maximized. The Repayment Amount with respect to the determinations by such accounting firm required to payment of Covered Payments shall be made hereunder. The accounting firm shall provide its calculations zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the Company and payment of the Covered Payments being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive within fifteen shall pay the Excise Tax. Notwithstanding any other provision of this Section 6(e), if (151) calendar days after there is a reduction in the date on payment of Covered Payments as described in this Section 6(e), (2) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s right to a Payment is triggered net after-tax proceeds (calculated as if requested at that time by the Covered Payments had not previously been reduced), and (3) Executive pays the Excise Tax, then the Company or Executive) or such other time as requested by the Company or Executive. Any reasonable determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in payments and/or benefits pay to Executive those Covered Payments which were reduced pursuant to this Section 4.2 will occur in 6(e) contemporaneously or as soon as administratively possible after Executive pays the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits payable to Excise Tax so that Executive. Nothing in this Section 4.2 shall require the Company or any of its affiliates to be responsible for, or have any liability or obligation ’s net after-tax proceeds with respect to, Executive’s excise tax liabilities under Section 4999 to the payment of the CodeCovered Payments are maximized.

280G Provisions. Notwithstanding anything in this Agreement to the contrary, if any payment, benefit payment or distribution Executive would receive pursuant to this Agreement or otherwise from the Company or any of its affiliates (“Payment”) would (a) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall either be (ia) delivered in full, or (iib) delivered as to such lesser extent which would result in no portion of such Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the largest payment, notwithstanding that all or some portion of the Payment may be taxable under Section 4999 of the Code. The Any determinations that are made pursuant to this Section 4.2 shall be made by a nationally recognized certified public accounting firm engaged that shall be selected by the Company for general audit purposes Company, as reasonably acceptable to Executive, prior to any transaction that is subject to Section 280G of the day prior Code (the “Accountant”), which determination shall be certified by the Accountant, set forth in writing and delivered to the effective date Executive setting forth in reasonable detail the basis of the Change in Control shall perform the foregoing calculationsAccountant’s determinations. The Company shall bear all expenses with respect to the determinations by such accounting firm Accountant required to be made hereunder. The accounting firm Accountant shall provide its calculations to the Company and Executive within fifteen (15) 15 calendar days after the date on which Executive’s 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, reasonable determinations of the accounting firm Accountant made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in payments and/or benefits pursuant to this Section 4.2 will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of options or stock optionsappreciation rights; and (43) reduction of other benefits payable to Executive. Nothing in this Section 4.2 shall require the Company or any of its affiliates to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.

280G Provisions. (a) Notwithstanding anything in any other provision of this Agreement or any other plan, arrangement, or agreement to the contrary, if any payment, of the payments or benefits provided or to be provided by the Company to the Participant or for the Participant’s benefit or distribution Executive would receive pursuant to the terms of this Agreement or otherwise from the Company or any of its affiliates (“PaymentCovered Payments”) would constitute parachute payments (a“Parachute Payments”) constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and would, and (b) but for this sentence, Section 20 be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then such Payment the Covered Payments shall be payable either be (i) delivered in full, full or (ii) delivered as after reduction to such lesser the minimum extent which would result in necessary to ensure that no portion of such Payment being the Covered Payments is subject to the Excise Tax, whichever of the foregoing amounts, (i) or (ii) results in the Participant’s receipt on an after-tax basis of the greatest amount of benefits after taking into account the applicable federal, state state, local and local income foreign income, employment and excise taxes and (including the Excise Tax, results in the receipt by Executive on an after-tax basis, of the largest payment), notwithstanding that all or some portion of the Payment such benefits may be taxable under the Excise Tax. (b) Unless the Company and the Participant otherwise agree in writing, any determination required under this Section 4999 20 shall be made in writing in good faith by a nationally recognized accounting firm (the “Accountants”). In the event of a reduction in Covered Payments hereunder, the reduction of the total payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the Code: (i) first, any cash severance payments due shall be reduced and (ii) second, any acceleration of vesting of any equity shall be deferred with the tranche that would vest last (without any such acceleration) first deferred. For purposes of making the calculations required by this Section 23, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The accounting firm engaged by Company and the Company for general audit purposes as of the day prior Participant shall furnish to the effective date of Accountants such information and documents as the Change Accountants may reasonably request in Control shall perform the foregoing calculationsorder to make a determination under this Section 20. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 20. (c) If notwithstanding any reduction described in this Section 20, the Internal Revenue Service (“IRS”) determines that the Participant is liable for the Excise Tax as a result of the receipt of the Covered Payments, then the Participant shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that the Participant challenges the final IRS determination, a final judicial determination a portion of such amounts equal to the “Repayment Amount.” The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to the Company so that the Participant’s net after-tax proceeds with respect to any payment of the Covered Payments (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on the Covered Payments) shall be maximized. The Repayment Amount with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s 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 reasonable determinations payment of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in payments and/or benefits pursuant to this Section 4.2 will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits payable to Executive. Nothing in this Section 4.2 shall require the Company or any of its affiliates to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.Covered