Common use of Certain Reductions of Payments by the Company Clause in Contracts

Certain Reductions of Payments by the Company. 1. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute an “excess parachute payment” within the meaning of Section 280G(b) of the U.S. Internal Revenue Code (the “Code”), and thus would result in the Executive incurring an excise tax under Section 4999 of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as “Agreement Payments”) shall be reduced to the Reduced Amount, but only if and to the extent that the after-tax value to the Executive of reduced Agreement Payments would exceed the after-tax value to the Executive of the Agreement Payments received by the Executive without application of such reduction. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments’ which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 6(c)(iv), present value shall be determined in accordance with Section 280G(d)(4) of the Code. Thus, for illustrative purposes only, if the Executive’s average W-2 compensation for the five (5) years prior to the year in which a change in control occurs (the “Base Amount”) was $500,000, and the value of the payments and benefits that are contingent upon the change in control (the “Parachute Payments”) was $1,510,000, the Executive would have an excess parachute payment within the meaning of Section 280G(b) of the Code since the value of the parachute payments ($1,510,000) would be greater than three (3) times the Executive’s Base Amount ($1,500,000). The amount of the excess parachute payment would be $1,010,000 (the amount by which the value of the parachute payments exceeds one (1) times the Base Amount), and if the aggregate amount of the parachute payments was not reduced, the Executive would incur an excise tax under Section 4999 of the Code equal to 20% of the excess parachute payment (or $202,000). This excess parachute payment could be avoided if instead, the value of the parachute payments was reduced by $10,001 to $1,499,999 (since the value of the parachute payments then would be less than three (3) times the Base Amount). Since the Executive would receive a greater after tax amount, under the foregoing example, if his parachute payments were reduced by $10,001 (to $1,499,999) than he would if his parachute payments were not reduced and the Executive incurred a $202,000 excise tax (reducing his parachute payments to $1,308,000) on the excess parachute payment, the Executive’s parachute payments would be reduced under this provision to $1,499,999 (by $10,001) to avoid any excess parachute payments.

Certain Reductions of Payments by the Company. 1. Anything in this Agreement (a) In the event that the aggregate payments or benefits to be provided to the contrary notwithstandingEmployee pursuant to this Agreement, in together with other payments and benefits which the event it shall be determined that any payment or distribution by Employee has a right to receive from the Company or its Consolidated Subsidiaries or any their successors, are deemed to be parachute payments as defined in Section 280G of the Code or for any successor thereto (the “Severance Benefits”), then the net-after-tax benefit of the Executive, whether paid or payable or distributed or distributable pursuant Severance Benefits without reduction shall be compared to the terms net-after-tax benefit of this Agreement or otherwise the Severance Benefits if such Severance Benefits were reduced to an amount (a the “PaymentNon-Triggering Amount”), would constitute an “excess parachute payment” within the meaning of Section 280G(b) of the U.S. Internal Revenue Code (the “Code”), and thus would result in the Executive incurring an excise tax under Section 4999 of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement which is one dollar (such payments or distributions pursuant to this Agreement are hereinafter referred to as “Agreement Payments”$1.00) shall be reduced to the Reduced Amount, but only if and to the extent that the after-tax value to the Executive of reduced Agreement Payments would exceed the after-tax value to the Executive of the Agreement Payments received by the Executive without application of such reduction. The “Reduced Amount” shall be less than an amount expressed equal to three times the Employee’s “base amount,” as determined in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of accordance with Section 280G of the Code. Anything If (y) the Non-Triggering Amount less the product of the Non-Triggering Amount and the Tax Rate (as defined below) would be greater than (z) the aggregate value of the Severance Benefits (without such reduction) minus (i) the amount of the excise tax required to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible paid by the Company for Federal income tax purposes because of Employee thereon by Section 280G 4999 of the CodeCode and further minus (ii) the product of the Severance Benefits (without such reduction) and the Tax Rate, then the aggregate present value of Payments’ which are not Agreement Payments Severance Benefits shall also be reduced (but not below zero) to an the Non-Triggering Amount; otherwise, the Employee shall be entitled to receive the full amount expressed in present value which maximizes of the aggregate present value of Payments without causing any Payment to Severance Benefits and shall be nondeductible responsible for paying the excise tax imposed by the Company because of Section 280G 4999 of the Code. For purposes of this section, “Tax Rate” shall mean the sum of (a) the highest marginal federal, state and local income tax rates applicable to the Employee, and (b) the Social Security and Medicare tax rates applicable to such payment, as adjusted for any phase out of federal tax deductions and any benefit associated with state or local tax deductions. If the Severance Benefits are required to be reduced to the Non-Triggering Amount, then the cash severance shall be reduced first, followed by a reduction in the fringe benefits to be provided in kind pursuant to this Agreement. Nothing contained in this Section 6(c)(iv8(a) shall result in a reduction of any payments or benefits to which the Employee may be entitled upon termination of employment under any circumstances other than as specified in this Section 8(a), present value shall be determined or a reduction in accordance with Section 280G(d)(4) of the Code. Thus, for illustrative purposes only, if the Executive’s average W-2 compensation for the five (5) years prior to the year in which a change in control occurs (the “Base Amount”) was $500,000, and the value of the payments and benefits that are contingent upon the change specified in control (the “Parachute Payments”) was $1,510,000, the Executive would have an excess parachute payment within the meaning of Section 280G(b) of the Code since the value of the parachute payments ($1,510,000) would be greater than three (3) times the Executive’s Base Amount ($1,500,000). The amount of the excess parachute payment would be $1,010,000 (the amount by which the value of the parachute payments exceeds one (1) times the Base Amount), and if the aggregate amount of the parachute payments was not reduced, the Executive would incur an excise tax under Section 4999 of the Code equal to 20% of the excess parachute payment (or $202,000). This excess parachute payment could be avoided if instead, the value of the parachute payments was reduced by $10,001 to $1,499,999 (since the value of the parachute payments then would be less than three (3) times the Base Amount). Since the Executive would receive a greater after tax amount, under the foregoing example, if his parachute payments were reduced by $10,001 (to $1,499,999) than he would if his parachute payments were not reduced and the Executive incurred a $202,000 excise tax (reducing his parachute payments to $1,308,000) on the excess parachute payment, the Executive’s parachute payments would be reduced under this provision to $1,499,999 (by $10,001) to avoid any excess parachute payments7 below zero.

Certain Reductions of Payments by the Company. (1. ) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “"Payment”"), would constitute an “"excess parachute payment” " within the meaning of Section 280G(b) of the U.S. Internal Revenue Code (the “"Code”"), and thus would result in the Executive incurring an excise tax under Section 4999 of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as “"Agreement Payments”") shall be reduced to the Reduced Amount, but only if and to the extent that the after-tax value to the Executive of reduced Agreement Payments would exceed the after-tax value to the Executive of the Agreement Payments received by the Executive without application of such reduction. The “"Reduced Amount” " shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments’ ' which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 6(c)(iv), present value shall be determined in accordance with Section 280G(d)(4) of the Code. Thus, for illustrative purposes only, if the Executive’s 's average W-2 compensation for the five (5) years prior to the year in which a change Change in control Control occurs (the “"Base Amount”") was $500,000, and the value of the payments and benefits that are contingent upon the change Change in control Control (the “"Parachute Payments”") was $1,510,000, the Executive would have an excess parachute payment within the meaning of Section 280G(b) of the Code since the value of the parachute payments ($1,510,000) would be greater than three (3) times the Executive’s 's Base Amount ($1,500,000). The amount of the excess parachute payment would be $1,010,000 (the amount by which the value of the parachute payments exceeds one (1) times the Base Amount), and if the aggregate amount of the parachute payments was not reduced, the Executive would incur an excise tax under Section 4999 of the Code equal to 20% of the excess parachute payment (or $202,000). This excess parachute payment could be avoided if instead, the value of the parachute payments was reduced by $10,001 to $1,499,999 (since the value of the parachute payments then would be less than three (3) times the Base Amount). Since the Executive would receive a greater after tax amount, under the foregoing example, if his parachute payments were reduced by $10,001 (to $1,499,999) than he would if his parachute payments were not reduced and the Executive incurred a $202,000 excise tax (reducing his parachute payments to $1,308,000) on the excess parachute payment, the Executive’s 's parachute payments would be reduced under this provision to $1,499,999 (by $10,001) to avoid any excess parachute payments.

Certain Reductions of Payments by the Company. 1. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “"Payment”"), would constitute an “"excess parachute payment” " within the meaning of Section 280G(b) of the U.S. Internal Revenue Code (the “"Code”"), and thus would result in the Executive incurring an excise tax under Section 4999 of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as “"Agreement Payments”") shall be reduced to the Reduced Amount, but only if and to the extent that the after-tax value to the Executive of reduced Agreement Payments would exceed the after-tax value to the Executive of the Agreement Payments received by the Executive without application of such reduction. The “"Reduced Amount” " shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments’ ' which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 6(c)(iv), present value shall be determined in accordance with Section 280G(d)(4) of the Code. Thus, for illustrative purposes only, if the Executive’s 's average W-2 compensation for the five (5) years prior to the year in which a change in control occurs (the “"Base Amount”") was $500,000, and the value of the payments and benefits that are contingent upon the change in control (the “"Parachute Payments”") was $1,510,000, the Executive would have an excess parachute payment within the meaning of Section 280G(b) of the Code since the value of the parachute payments ($1,510,000) would be greater than three (3) times the Executive’s 's Base Amount ($1,500,000). The amount of the excess parachute payment would be $1,010,000 (the amount by which the value of the parachute payments exceeds one (1) times the Base Amount), and if the aggregate amount of the parachute payments was not reduced, the Executive would incur an excise tax under Section 4999 of the Code equal to 20% of the excess parachute payment (or $202,000). This excess parachute payment could be avoided if instead, the value of the parachute payments was reduced by $10,001 to $1,499,999 (since the value of the parachute payments then would be less than three (3) times the Base Amount). Since the Executive would receive a greater after tax amount, under the foregoing example, if his parachute payments were reduced by $10,001 (to $1,499,999) than he would if his parachute payments were not reduced and the Executive incurred a $202,000 excise tax (reducing his parachute payments to $1,308,000) on the excess parachute payment, the Executive’s 's parachute payments would be reduced under this provision to $1,499,999 (by $10,001) to avoid any excess parachute payments.

Certain Reductions of Payments by the Company. (1. ) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “"Payment”"), would constitute an “"excess parachute payment” " within the meaning of Section 280G(b) of the U.S. Internal Revenue Code (the “Code”), and thus would result in the Executive Employee incurring an excise tax under Section 4999 of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive Employee pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as “"Agreement Payments”") shall be reduced to the Reduced Amount, but only if and to the extent that the after-tax value to the Executive Employee of reduced Agreement Payments would exceed the after-tax value to the Executive Employee of the Agreement Payments received by the Executive Employee without application of such reduction. The “"Reduced Amount” " shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments’ ' which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 6(c)(iv9(e)(i), present value shall be determined in accordance with Section 280G(d)(4) of the Code. Thus, for illustrative purposes only, if the Executive’s Employee's average W-2 compensation for the five (5) years prior to the year in which a change in control occurs (the “"Base Amount”") was $500,000, and the value of the payments and benefits that are contingent upon the change in control (the “"Parachute Payments”") was $1,510,000, the Executive Employee would have an excess parachute payment within the meaning of Section 280G(b) of the Code since the value of the parachute payments ($1,510,000) would be greater than three (3) times the Executive’s Employee's Base Amount ($1,500,000). The amount of the excess parachute payment would be $1,010,000 (the amount by which the value of the parachute payments exceeds one (1) times the Base Amount), and if the aggregate amount of the parachute payments was not reduced, the Executive Employee would incur an excise tax under Section 4999 of the Code equal to 20% of the excess parachute payment (or $202,000). This excess parachute payment could be avoided if instead, the value of the parachute payments was reduced by $10,001 to $1,499,999 (since the value of the parachute payments then would be less than three (3) times the Base Amount). Since the Executive Employee would receive a greater after tax amount, under the foregoing example, if his parachute payments were reduced by $10,001 (to $1,499,999) than he would if his parachute payments were not reduced and the Executive Employee incurred a $202,000 excise tax (reducing his parachute payments to $1,308,000) on the excess parachute payment, the Executive’s Employee's parachute payments would be reduced under this provision to $1,499,999 (by $10,001) to avoid any excess parachute payments.

Certain Reductions of Payments by the Company. (1. ) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute an “excess parachute payment” within the meaning of Section 280G(b) of the U.S. Internal Revenue Code (the “Code”), and thus would result in the Executive Employee incurring an excise tax under Section 4999 of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive Employee pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as “Agreement Payments”) shall be reduced to the Reduced Amount, but only if and to the extent that the after-tax value to the Executive Employee of reduced Agreement Payments would exceed the after-tax value to the Executive Employee of the Agreement Payments received by the Executive Employee without application of such reduction. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments’ which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 6(c)(iv9(e)(i), present value shall be determined in accordance with Section 280G(d)(4) of the Code. Thus, for illustrative purposes only, if the ExecutiveEmployee’s average W-2 compensation for the five (5) years prior to the year in which a change in control occurs (the “Base Amount”) was $500,000, and the value of the payments and benefits that are contingent upon the change in control (the “Parachute Payments”) was $1,510,000, the Executive Employee would have an excess parachute payment within the meaning of Section 280G(b) of the Code since the value of the parachute payments ($1,510,000) would be greater than three (3) times the ExecutiveEmployee’s Base Amount ($1,500,000). The amount of the excess parachute payment would be $1,010,000 (the amount by which the value of the parachute payments exceeds one (1) times the Base Amount), and if the aggregate amount of the parachute payments was not reduced, the Executive Employee would incur an excise tax under Section 4999 of the Code equal to 20% of the excess parachute payment (or $202,000). This excess parachute payment could be avoided if instead, the value of the parachute payments was reduced by $10,001 to $1,499,999 (since the value of the parachute payments then would be less than three (3) times the Base Amount). Since the Executive Employee would receive a greater after tax amount, under the foregoing example, if his parachute payments were reduced by $10,001 (to $1,499,999) than he would if his parachute payments were not reduced and the Executive Employee incurred a $202,000 excise tax (reducing his parachute payments to $1,308,000) on the excess parachute payment, the ExecutiveEmployee’s parachute payments would be reduced under this provision to $1,499,999 (by $10,001) to avoid any excess parachute payments.

Certain Reductions of Payments by the Company. (1. ) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute an “excess parachute payment” within the meaning of Section 280G(b) of the U.S. Internal Revenue Code (the “Code”), and thus would result in the Executive incurring an excise tax under Section 4999 of the Code, then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as “Agreement Payments”) shall be reduced to the Reduced Amount, but only if and to the extent that the after-tax value to the Executive of reduced Agreement Payments would exceed the after-tax value to the Executive of the Agreement Payments received by the Executive without application of such reduction. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment would nevertheless be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Code, then the aggregate present value of Payments’ which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. For purposes of this Section 6(c)(iv), present value shall be determined in accordance with Section 280G(d)(4) of the Code. Thus, for illustrative purposes only, if the Executive’s average W-2 compensation for the five (5) years prior to the year in which a change Change in control Control occurs (the “Base Amount”) was $500,000, and the value of the payments and benefits that are contingent upon the change Change in control Control (the “Parachute Payments”) was $1,510,000, the Executive would have an excess parachute payment within the meaning of Section 280G(b) of the Code since the value of the parachute payments ($1,510,000) would be greater than three (3) times the Executive’s Base Amount ($1,500,000). The amount of the excess parachute payment would be $1,010,000 (the amount by which the value of the parachute payments exceeds one (1) times the Base Amount), and if the aggregate amount of the parachute payments was not reduced, the Executive would incur an excise tax under Section 4999 of the Code equal to 20% of the excess parachute payment (or $202,000). This excess parachute payment could be avoided if instead, the value of the parachute payments was reduced by $10,001 to $1,499,999 (since the value of the parachute payments then would be less than three (3) times the Base Amount). Since the Executive would receive a greater after tax amount, under the foregoing example, if his parachute payments were reduced by $10,001 (to $1,499,999) than he would if his parachute payments were not reduced and the Executive incurred a $202,000 excise tax (reducing his parachute payments to $1,308,000) on the excess parachute payment, the Executive’s parachute payments would be reduced under this provision to $1,499,999 (by $10,001) to avoid any excess parachute payments.