Common use of Application of Section 280G of the Code Clause in Contracts

Application of Section 280G of the Code. Notwithstanding any provision of this Agreement to the contrary, if it is determined that any amount or benefit to be paid or provided under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement by the Company to or for the benefit of the Executive would be an “excess parachute payment,” within the meaning of section 280G of the Code, or any successor provision thereof, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an excess parachute payment as therein defined. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 13(b), shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. (i) All determinations to be made under this Section 13(b) shall be made by the Company’s independent public accounting firm as in effect immediately prior to the Change of Control (the “Accounting Firm”), which firm shall provide its determinations and any supporting calculations to the Company and Chief Executive Officer within 10 business days of the event that gives rise to the “excess parachute payment.” Any such determination by the Accounting Firm shall be binding upon the Company and the Executive. Within five days after the Accounting Firm’s determination, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement. (ii) Within two years after the event that gives rise to the “excess parachute payment,” the Accounting Firm shall review the determination made pursuant to the preceding paragraph. If the Accounting Firm determines that any payments will have been made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder, any such Overpayment shall be treated for all purposes as a loan to the Executive which the Executive shall repay to the Company, together with interest at the applicable Federal rate provided for in section 7872(f)(2) of the Code (the “Federal Rate”). In the event that the Accounting Firm determines that additional payments which have not been made by the Company could have been made (“Underpayment”), consistent with the calculations required to be made hereunder, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive, together with interest at the Federal Rate. (iii) All of the fees and expenses of the Accounting Firm in performing the determinations referred to this Section 13(b) shall be borne solely by the Company. (iv) The limitations of this Section 13(b) shall only apply if payments under this Agreement are subject to section 280G at the time of the Change of Control.

Application of Section 280G of the Code. Notwithstanding any provision of this Agreement to the contrary, if it is determined that any amount or benefit to be paid or provided under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement by the Company to or for the benefit of the Executive would be an “excess parachute payment,” within the meaning of section 280G of the Code, or any successor provision thereof, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an excess parachute payment as therein defined. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 13(b), shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. (i) All determinations to be made under this Section 13(b) shall be made by the Company’s independent public accounting firm as in effect immediately prior to the Change of Control (the “Accounting Firm”), which firm shall provide its determinations and any supporting calculations to the Company and Chief Executive Officer within 10 business days of the event that gives rise to the “excess parachute payment.” Any such determination by the Accounting Firm shall be binding upon the Company and the Executive. The Executive shall in his/her sole discretion determine which and how much of the payments or benefits shall be eliminated or reduced consistent with the requirements of this Section 13(b). Within five days after the Accounting FirmExecutive’s determination, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement.. In the event that the Executive fails to make such designation within 20 business days of his/her notice that such payments or benefits must be eliminated or reduced to comply with this Agreement, the Company may effect such reduction in any manner it deems appropriate (ii) Within two years after the event that gives rise to the “excess parachute payment,” the Accounting Firm shall review the determination made pursuant to the preceding paragraph. If the Accounting Firm determines that any payments will have been made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder, any such Overpayment shall be treated for all purposes as a loan to the Executive which the Executive shall repay to the Company, together with interest at the applicable Federal rate provided for in section 7872(f)(2) of the Code (the “Federal Rate”). In the event that the Accounting Firm determines that additional payments which have not been made by the Company could have been made (“Underpayment”), consistent with the calculations required to be made hereunder, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive, together with interest at the Federal Rate. (iii) All of the fees and expenses of the Accounting Firm in performing the determinations referred to this Section 13(b) shall be borne solely by the Company. (iv) The limitations of this Section 13(b) shall only apply if payments under this Agreement are subject to section 280G at the time of the Change of Control.

Application of Section 280G of the Code. Notwithstanding any provision of this Agreement to In the contrary, if event that it is shall be determined that any amount payment or benefit to be paid or provided under this Agreement or otherwise pursuant to or by reason distribution in the nature of any other agreement, policy, plan, program or arrangement by compensation (within the Company meaning of section 280G(b)(2) of the Code) to or for the benefit of the Executive Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be constitute an “excess parachute payment,” within the meaning of section 280G of the Code, or the aggregate present value of the Payments under the Agreement shall be reduced (but not below zero) to the Reduced Amount (defined below), provided that the reduction shall be made only if the Accounting Firm (described below) determines that the reduction will provide the Executive with a greater net after-tax benefit than would no reduction. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Payments under this Agreement without causing any successor provision thereof, then the payments and benefits Payment under this Agreement to be paid subject to the Excise Tax (defined below), determined in accordance with section 280G(d)(4) of the Code. The term “Excise Tax” means the excise tax imposed under section 4999 of the Code, together with any interest or provided penalties imposed with respect to such excise tax. Unless the Executive shall have elected another method of reduction by written notice to the Company prior to the Change of Control, the Company shall reduce the Payments under this Agreement by first reducing Payments that are not payable in cash and then by reducing cash Payments. Only amounts payable under this Agreement shall be reduced to the minimum extent necessary (but in no event less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an excess parachute payment as therein defined. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 13(b), shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. subsection (i) b). All determinations to be made under this Section 13(bsubsection (b) shall be made by the Company’s an independent certified public accounting firm as in effect selected by the Company immediately prior to the Change of Control (the “Accounting Firm”), which firm shall provide its determinations and any supporting calculations both to the Company and Chief the Executive Officer within 10 business days of the event that gives rise to the “excess parachute payment.” Change of Control. Any such determination by the Accounting Firm shall be binding upon the Company and the Executive. Within five days after the Accounting Firm’s determination, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement. (ii) Within two years after the event that gives rise to the “excess parachute payment,” the Accounting Firm shall review the determination made pursuant to the preceding paragraph. If the Accounting Firm determines that any payments will have been made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder, any such Overpayment shall be treated for all purposes as a loan to the Executive which the Executive shall repay to the Company, together with interest at the applicable Federal rate provided for in section 7872(f)(2) of the Code (the “Federal Rate”). In the event that the Accounting Firm determines that additional payments which have not been made by the Company could have been made (“Underpayment”), consistent with the calculations required to be made hereunder, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive, together with interest at the Federal Rate. (iii) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 13(bsubsection (b) shall be borne solely by the Company. (iv) The limitations of this Section 13(b) shall only apply if payments under this Agreement are subject to section 280G at the time of the Change of Control.

Application of Section 280G of the Code. Notwithstanding any provision of this Agreement to the contrary, if it is determined that any amount or benefit to be paid or provided under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement by the Company to or for the benefit of the Executive would be an “excess parachute payment,” within the meaning of section 280G of the Code, or any successor provision thereof, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an excess parachute payment as therein defined. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 13(b12(b), shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. (i) All determinations to be made under this Section 13(b12(b) shall be made by the Company’s independent public accounting firm as in effect immediately prior to the Change of Control (the “Accounting Firm”), which firm shall provide its determinations and any supporting calculations to the Company and Chief Executive Officer within 10 business days of the event that gives rise to the “excess parachute payment.” Any such determination by the Accounting Firm shall be binding upon the Company and the Executive. Within five days after the Accounting Firm’s determination, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement. (ii) Within two years after the event that gives rise to the “excess parachute payment,” the Accounting Firm shall review the determination made pursuant to the preceding paragraph. If the Accounting Firm determines that any payments will have been made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder, any such Overpayment shall be treated for all purposes as a loan to the Executive which the Executive shall repay to the Company, together with interest at the applicable Federal rate provided for in section 7872(f)(2) of the Code (the “Federal Rate”). In the event that the Accounting Firm determines that additional payments which have not been made by the Company could have been made (“Underpayment”), consistent with the calculations required to be made hereunder, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive, together with interest at the Federal Rate. (iii) All of the fees and expenses of the Accounting Firm in performing the determinations referred to this Section 13(b12(b) shall be borne solely by the Company. (iv) The limitations of this Section 13(b12(b) shall only apply if payments under this Agreement are subject to section 280G at the time of the Change of Control.