Common use of Change in Control Best Payments Determination Clause in Contracts

Change in Control Best Payments Determination. Any other provision of this Agreement to the contrary notwithstanding, if any portion of any payment or benefit under this Agreement either individually or in conjunction with any payment or benefit under any other plan, agreement or arrangement (all such payments and benefits, the “Total Payments”) would constitute an “excess parachute payment” within the meaning of Internal Revenue Code Section 280G, that is subject to the tax imposed by Section 4999 of such Code, then the Total Payments to be made to Executive shall be reduced, but only to the extent that Executive would retain a greater amount on an after-tax basis than he would retain absent such reduction, such that the value of the Total Payments that Executive is entitled to receive shall be $1 less than the maximum amount which the Employee may receive without becoming subject to the excise tax under Section 4999 of the Code. For purposes of this Section 5.6, the determination of whichever amount is greater on an after-tax basis shall be (i) based on maximum federal, state and local income and employment tax rates and the tax that would be imposed on Executive pursuant to Section 4999 and (ii) made at the Company’s expense by consultants selected by the Company prior to the date of the change in control, which determination shall be binding on both Executive and the Company. Any such reduction as may apply under this Section 5.6 shall be applied in the following order: (i) payments that are payable in cash the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a) shall be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), shall next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with amounts that are payable last reduced first, shall next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), shall next be reduced; and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) shall be next reduced pro-rata.

Change in Control Best Payments Determination. Any other provision of this Agreement to the contrary notwithstanding, if any portion of any payment or benefit under this Agreement either individually or in conjunction with any payment or benefit under any other plan, agreement or arrangement (all such payments and benefits, the “Total Payments”) would constitute an “excess parachute payment” within the meaning of Internal Revenue Code Section 280G, that is subject to the tax imposed by Section 4999 of such CodeCode (the “Excise Tax”), then the Total Payments to be made to Executive shall be reduced, but only to the extent that Executive would retain a greater amount on an after-tax basis than he would retain absent such reduction, such that the value of the Total Payments that Executive is entitled to receive shall be $1 less than the maximum amount which the Employee Executive may receive without becoming subject to the excise tax under Section 4999 of the CodeExcise Tax. For purposes of this Section 5.65.7, the determination of whichever amount is greater on an after-tax basis shall be (ix) based on maximum federal, state and local income and employment tax rates and the tax Excise Tax that would be imposed on Executive pursuant to Section 4999 and (iiy) made at the Company’s expense by consultants independent accountants selected by the Company prior to and Executive (which may be the date of the change in control, Company’s income tax return preparers if Executive so agrees) which determination shall be binding on both Executive and the Company. Any such reduction as may apply under this Section 5.6 5 7 shall be applied in the following order: (i) payments that are payable in cash the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a) shall will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), shall ) will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with amounts that are payable last reduced first, shall will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), shall ) will next be reduced; and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) shall will be next reduced pro-rata.

Change in Control Best Payments Determination. Any other provision of this Agreement to the contrary notwithstanding, if any portion of any payment or benefit under this Agreement either individually or in conjunction with any payment or benefit under any other plan, agreement or arrangement (all such payments and benefits, the “"Total Payments”") would constitute an “"excess parachute payment” " within the meaning of Internal Revenue Code Section 280G, that is subject to the tax imposed by Section 4999 of such CodeCode (the "Excise Tax"), then the Total Payments to be made to Executive shall be reduced, but only to the extent that Executive would retain a greater amount on an after-tax basis than he would retain absent such reduction, such that the value of the Total Payments that Executive is entitled to receive shall be $1 less than the maximum amount which the Employee may receive without becoming subject to the excise tax under Section 4999 of the CodeExcise Tax. For purposes of this Section 5.65.7, the determination of whichever amount is greater on an after-tax basis shall be (ix) based on maximum federal, state and local income and employment tax rates and the tax Excise Tax that would be imposed on Executive pursuant to Section 4999 and (iiy) made at the Company’s 's expense by consultants independent accountants selected by the Company prior to and Executive (which may be the date of the change in control, Company's income tax return preparers if Executive so agrees) which determination shall be binding on both Executive and the Company. Any such reduction as may apply under this Section 5.6 5.7 shall be applied in the following order: (i) payments that are payable in cash the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1l.280G-1, Q&A 24(a) shall will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1l .280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), shall ) will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1l .280G-1, Q&A 24, with amounts that are payable last reduced first, shall will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1l.280G-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-11.2800-1, Q&A 24), shall ) will next be reduced; and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) shall will next be next reduced pro-rata.

Change in Control Best Payments Determination. Any other provision of this Agreement to the contrary notwithstanding, if any portion of any payment or benefit under this Agreement either individually or in conjunction with any payment or benefit under any other plan, agreement or arrangement (all such payments and benefits, the “Total Payments”) would constitute an “excess parachute payment” within the meaning of Internal Revenue Code Section 280G, that is subject to the tax imposed by Section 4999 of such CodeCode (the “Excise Tax”), then the Total Payments to be made to Executive shall be reduced, but only to the extent that Executive would retain a greater amount on an after-tax basis than he would retain absent such reduction, such that the value of the Total Payments that Executive is entitled to receive shall be $1 less than the maximum amount which the Employee may receive without becoming subject to the excise tax under Section 4999 of the CodeExcise Tax. For purposes of this Section 5.65.7, the determination of whichever amount is greater on an after-tax basis shall be (ix) based on maximum federal, state and local income and employment tax rates and the tax Excise Tax that would be imposed on Executive pursuant to Section 4999 and (iiy) made at the Company’s expense by consultants independent accountants selected by the Company prior to and Executive (which may be the date of the change in control, Company’s income tax return preparers if Executive so agrees) which determination shall be binding on both Executive and the Company. Any such reduction as may apply under this Section 5.6 5.7 shall be applied in the following order: (i) payments that are payable in cash the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a) shall will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), shall ) will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with amounts that are payable last reduced first, shall will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), shall ) will next be reduced; and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) shall will next be next reduced pro-rata. For the avoidance of doubt, in determining Executive’s potential exposure to the Excise Tax, the Company shall retain a nationally recognized public accounting firm (or other professionals agreed upon with Executive) to analyze at its expense potential exposure, including, without limitation, a valuation of Executive’s restrictive covenants to determine the reasonable compensation Executive will receive for abiding by such restrictive covenants.

Change in Control Best Payments Determination. Any other provision of this Agreement to the contrary notwithstanding, if any portion of any payment or benefit under this Agreement either individually or in conjunction with any payment or benefit under any other plan, agreement or arrangement (all such payments and benefits, the “Total Payments”) would constitute an “excess parachute payment” within the meaning of Internal Revenue Code Section 280G, that is subject to the tax imposed by Section 4999 of such CodeCode (the “Excise Tax”), then the Total Payments to be made to Executive shall be reduced, but only to the extent that Executive would retain a greater amount on an after-tax basis than he would retain absent such reduction, such that the value of the Total Payments that Executive is entitled to receive shall be $1 less than the maximum amount which the Employee Executive may receive without becoming subject to the excise tax under Section 4999 of the CodeExcise Tax. For purposes of this Section 5.65.7, the determination of whichever amount is greater on an after-tax basis shall be (ix) based on maximum federal, state and local income and employment tax rates and the tax Excise Tax that would be imposed on Executive pursuant to Section 4999 and (iiy) made at the Company’s expense by consultants independent accountants selected by the Company prior to and Executive (which may be the date of the change in control, Company’s income tax return preparers if Executive so agrees) which determination shall be binding on both Executive and the Company. Any such reduction as may apply under this Section 5.6 5.7 shall be applied in the following order: (i) payments that are payable in cash the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a) shall will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), shall ) will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with amounts that are payable last reduced first, shall will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), shall ) will next be reduced; and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) shall will next be next reduced pro-rata.

Change in Control Best Payments Determination. Any other provision of this Agreement to the contrary notwithstanding, if any portion of any payment or benefit under this Agreement either individually or in conjunction with any payment or benefit under any other plan, agreement or arrangement (all such payments and benefits, the “"Total Payments”") would constitute an “"excess parachute payment” " within the meaning of Internal Revenue Code Section 280G, that is subject to the tax imposed by Section 4999 of such CodeCode (the "Excise Tax"), then the Total Payments to be made to Executive shall be reduced, but only to the extent that Executive would retain a greater amount on an after-tax basis than he would retain absent such reduction, such that the value of the Total Payments that Executive is entitled to receive shall be $1 less than the maximum amount which the Employee may receive without becoming subject to the excise tax under Section 4999 of the CodeExcise Tax. For purposes of this Section 5.65.7, the determination of whichever amount is greater on an after-tax basis shall be (ix) based on maximum federal, state and local income and employment tax rates and the tax Excise Tax that would be imposed on Executive pursuant to Section 4999 and (iiy) made at the Company’s 's expense by consultants independent accountants selected by the Company prior to and Executive (which may be the date of the change in control, Company's income tax return preparers if Executive so agrees) which determination shall be binding on both Executive and the Company. Any such reduction as may apply under this Section 5.6 5 7 shall be applied in the following order: (i) payments that are payable in cash the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1l.280G-1, Q&A 24(a) shall will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1l.280G-l, Q&A 24), shall ) will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1I .280G- l, Q&A 24, with amounts that are payable last reduced first, shall will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-11.2800-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1l.2800-l, Q&A 24), shall ) will next be reduced; and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) shall will next be next reduced pro-rata.