Common use of 280G Provisions Clause in Contracts

280G Provisions. If it is determined that any payment or benefit provided to or for the benefit of Executive (a "Payment"), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would be subject to the excise tax imposed by Code section 4999 or any interest or penalties with respect to such excise tax (such excise tax together with any such interest and penalties, shall be referred to as the "Excise Tax"), then a calculation shall first be made under which such payments or benefits provided to Executive are reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax (the "4999 Limit"). The Company shall then compare (a) Executive's Net After-Tax Benefit (as defined below) assuming application of the 4999 Limit with (b) Executive's Net After-Tax Benefit without application of the 4999 Limit. "Net After-Tax Benefit" shall mean the sum of (i) all payments that Executive receives or is entitled to receive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company within the meaning of Code section 280G(b)(2), less (ii) the amount of federal, state, local, employment, and Excise Tax (if any) imposed with respect to such payments. In the event (a) is greater than (b), Executive shall receive Payments solely up to the 4999 Limit, with cash Payments reduced or eliminated first and in the order that such Payments would be made to Executive, such that cash Payments that would be paid furthest in time from the date of the event triggering the payments would be reduced or eliminated last. In the event (b) is greater than (a), then Executive shall be entitled to receive all such Payments, and shall be solely liable for any and all Excise Tax related thereto. [PRIOR TO FEBRUARY 24, 2010, CHANGE-IN-CONTROL SEVERANCE AGREEMENTS ENTERED INTO BY SENIOR EXECUTIVES AND THE COMPANY CONTAINED THE FOLLOWING PROVISIONS IN LIEU OF THE PROVISIONS CONTAINED IN THE PARAGRAPH IMMEDIATELY PRECEDING THIS SENTENCE.]

280G Provisions. If it is determined that Notwithstanding any payment other provision of this Agreement or benefit any other plan, arrangement, or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company to the Participant or for the Participant’s benefit of Executive (a "Payment"), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise (“Covered Payments”) constitute parachute payments (“Parachute Payments”) within the meaning of Section 280G of the Code and would, would but for this Section 18 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by Code section 4999 state or local law or any interest or penalties with respect to such excise tax taxes (such excise tax together with any such interest and penaltiescollectively, shall be referred to as the "“Excise Tax"”), then a calculation the Covered Payments shall first be made under which such payments payable either (i) in full or benefits provided to Executive are reduced (ii) after reduction to the minimum extent necessary so to ensure that no portion thereof shall be of the Covered Payments is subject to the Excise Tax Tax, whichever of the foregoing (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, local and foreign income, employment and excise taxes (including the Excise Tax), notwithstanding that all or some portion of 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 18 shall be made in writing in good faith by a nationally recognized accounting firm (the "4999 Limit"“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 18, 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 Company and the Participant shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 18. The Company shall then compare bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 18. If notwithstanding any reduction described in this Section 18, the Internal Revenue Service (a“IRS”) Executive's Net After-determines that the Participant is liable for the Excise Tax Benefit (as defined below) assuming application a result of the 4999 Limit with (b) Executive's Net After-Tax Benefit without application receipt of the 4999 LimitCovered 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. "Net AfterThe Repayment Amount with respect to the payment of Covered Payments shall be zero if a Repayment Amount of more than zero would not result in the Participant’s net after-tax proceeds with respect to the payment of the Covered Payments being maximized. If the Excise Tax Benefit" is not eliminated pursuant to this paragraph, the Participant shall mean pay the sum Excise Tax. Notwithstanding any other provision of this Section 18, if (i) all payments that Executive receives or there is entitled to receive that are contingent on a change reduction in the ownership or effective control payment of the Company or Covered Payments as described in the ownership of a substantial portion of the assets of the Company within the meaning of Code section 280G(b)(2)this Section 18, less (ii) the amount IRS later determines that the Participant is liable for the Excise Tax, the payment of federal, state, local, employmentwhich 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 (iii) the Participant pays the Excise Tax, then the Company shall pay to the Participant those Covered Payments which were reduced pursuant to this Section 18 contemporaneously or as soon as administratively possible after the Participant pays the Excise Tax (if any) imposed so that the Participant’s net after-tax proceeds with respect to such payments. In the event (a) is greater than (b), Executive shall receive payment of Covered Payments solely up to the 4999 Limit, with cash Payments reduced or eliminated first and in the order that such Payments would be made to Executive, such that cash Payments that would be paid furthest in time from the date of the event triggering the payments would be reduced or eliminated last. In the event (b) is greater than (a), then Executive shall be entitled to receive all such Payments, and shall be solely liable for any and all Excise Tax related thereto. [PRIOR TO FEBRUARY 24, 2010, CHANGE-IN-CONTROL SEVERANCE AGREEMENTS ENTERED INTO BY SENIOR EXECUTIVES AND THE COMPANY CONTAINED THE FOLLOWING PROVISIONS IN LIEU OF THE PROVISIONS CONTAINED IN THE PARAGRAPH IMMEDIATELY PRECEDING THIS SENTENCEare maximized.]

280G Provisions. If it is determined that any payment or benefit provided to or for the benefit of Executive (a "Payment"), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would be subject to the excise tax imposed by Code section 4999 or any interest or penalties with respect to such excise tax (such excise tax together with any such interest and penalties, shall be referred to as the "Excise Tax"), then a calculation shall first be made under which such payments or benefits provided to Executive are reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax (the "4999 Limit"). The Company shall then compare (a) Executive's Net After-Tax Benefit (as defined below) assuming application of the 4999 Limit with (b) Executive's Net After-Tax Benefit without application of the 4999 Limit. "Net After-Tax Benefit" shall mean the sum of (i) all payments that Executive receives or is entitled to receive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company within the meaning of Code section 280G(b)(2), less (ii) the amount of federal, state, local, employment, and Excise Tax (if any) imposed with respect to such payments. In the event (a) is greater than (b), Executive shall receive Payments solely up to the 4999 Limit, with cash Payments reduced or eliminated first and in the order that such Payments would be made to Executive, such that cash Payments that would be paid furthest in time from the date of the event triggering the payments would be reduced or eliminated last. In the event (b) is greater than (a), then Executive shall be entitled to receive all such Payments, and shall be solely liable for any and all Excise Tax related thereto. [PRIOR TO FEBRUARY 24, 2010, CHANGE-IN-CONTROL SEVERANCE AGREEMENTS ENTERED INTO BY SENIOR EXECUTIVES AND THE COMPANY CONTAINED THE FOLLOWING PROVISIONS IN LIEU OF THE PROVISIONS CONTAINED IN THE PARAGRAPH IMMEDIATELY PRECEDING THIS SENTENCE.]

280G Provisions. If it is determined that any payment or benefit provided to or for the benefit of Executive Key Employee (a "“Payment"”), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would be subject to the excise tax imposed by Code section Section 4999 or any interest or penalties with respect to such excise tax (such excise tax together with any such interest and penalties, shall be referred to as the "“Excise Tax"”), then a calculation shall first be made under which such payments or benefits provided to Executive Key Employee are reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax (the "“4999 Limit"”). The Company shall then compare (a) Executive's Key Employee’s Net After-Tax Benefit (as defined below) assuming application of the 4999 Limit with (b) Executive's Key Employee’s Net After-Tax Benefit without application of the 4999 Limit. "“Net After-Tax Benefit" ” shall mean the sum of (i) all payments that Executive Key Employee receives or is entitled to receive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company within the meaning of Code section Section 280G(b)(2), less (ii) the amount of federal, state, local, employment, and Excise Tax (if any) imposed with respect to such payments. In the event (a) is greater than (b), Executive Key Employee shall receive Payments solely up to the 4999 Limit, with cash Payments reduced or eliminated first and in the order that such Payments would be made to ExecutiveKey Employee, such that cash Payments that would be paid furthest in time from the date of the event triggering the payments would be reduced or eliminated last. In the event (b) is greater than (a), then Executive Key Employee shall be entitled to receive all such Payments, and shall be solely liable for any and all Excise Tax related thereto. [PRIOR TO FEBRUARY 24, 2010, CHANGE-IN-CONTROL SEVERANCE AGREEMENTS ENTERED INTO BY SENIOR EXECUTIVES AND THE COMPANY CONTAINED THE FOLLOWING PROVISIONS IN LIEU OF THE PROVISIONS CONTAINED IN THE PARAGRAPH IMMEDIATELY PRECEDING THIS SENTENCE.]