Common use of Code Section 280G Clause in Contracts

Code Section 280G. Notwithstanding any other provision of this Agreement, if it is determined that the benefits or payments payable under this Agreement, taking into account other benefits or payments provided under other plans, agreements or arrangements, constitute Parachute Payments that would subject Executive to tax under Section 4999 of the Code, it must be determined whether Executive will receive the total payments due or the Reduced Amount. Executive will receive the Reduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from Executive receiving the total payments due. If it is determined that the total payments should be reduced to the Reduced Amount, the Company must promptly notify Executive of that determination, including a copy of the detailed calculations by an accounting firm or other professional organization qualified to make the calculation that was selected by the Company and acceptable to Executive (the “Accounting Firm”). The Company shall pay the fees and expenses of the Accounting Firm. All determinations made by the Accounting Firm under this SECTION 6.16 are binding upon the Company and Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by Executive. Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in part.

Code Section 280G. Notwithstanding any other provision of this Agreement, if it is determined that the benefits or payments payable under this Agreement, taking into account other benefits or payments provided under other plans, agreements or arrangements, constitute Parachute Payments that would subject the Executive to tax under Section 4999 of the Code, it must be determined whether the Executive will receive the total payments due or the Reduced Amount. The Executive will receive the Reduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from the Executive receiving the total payments due. If it is determined that the total payments should be reduced to the Reduced Amount, the Company must promptly notify the Executive of that determination, including a copy of the detailed calculations by an accounting firm or other professional organization qualified to make the calculation that was selected by the Company and acceptable to the Executive (the “Accounting Firm”). The Company shall pay the fees and expenses of the Accounting Firm. All determinations made by the Accounting Firm under this SECTION 6.16 6.15 are binding upon the Company and the Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and the Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to the Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide the Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by the Executive. The Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in part.

Code Section 280G. Notwithstanding any other provision of this Agreement, if (a) In the event it is shall be determined that any payment or distribution to you or for your benefit which is in the benefits nature of compensation and is contingent on a change in the ownership or payments effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to this letter or otherwise (a “Payment”), would constitute a “parachute payment” under this Agreement, taking into account other benefits or payments provided under other plans, agreements or arrangements, constitute Parachute Payments that Section 280G(b)(2) of the Code and would be subject Executive to the excise tax under imposed by Section 4999 of the CodeCode (together with any interest or penalties imposed with respect to such excise tax, it must be determined whether Executive will receive the total payments due or “Excise Tax”), then the Reduced Amount. Executive will receive the Reduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from Executive receiving the total payments due. If it is determined that the total payments should Payments shall be reduced to the Reduced Amountextent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit received by you shall exceed the net after-tax benefit received by you if no such reduction was made. For purposes of this Section 7(a), “net after-tax benefit” shall mean (i) the Payments which you receive or are then entitled to receive from the Company must promptly notify Executive that would constitute “parachute payments” within the meaning of that determination, including a copy Section 280G of the detailed calculations Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the Payments calculated at the maximum marginal income tax rate for each year in which the Payments shall be paid to you (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Taxes imposed with respect to the Payments. (b) All determinations required to be made under this Section 7 shall be made by an such nationally recognized accounting firm or other professional organization qualified to make the calculation that was as may be selected by the Company and acceptable Audit Committee of the Board as constituted immediately prior to Executive the Change in Control (the “Accounting Firm”), provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company shall pay within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm. All determinations made Firm shall be borne solely by the Accounting Firm under this SECTION 6.16 are binding upon the Company and Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by Executive. Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in partCompany.

Code Section 280G. Notwithstanding any other provision of this Agreement, if it is determined that the benefits or payments payable under this Agreement, taking into account other benefits or payments provided under other plans, agreements or arrangements, constitute Parachute Payments that would subject the Executive to tax under Section 4999 of the Code, it must be determined whether the Executive will receive the total payments due or the Reduced Amount. The Executive will receive the Reduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from the Executive receiving the total payments due. If it is determined that the total payments should be reduced to the Reduced Amount, the Company must promptly notify the Executive of that determination, including a copy of the detailed calculations by an accounting firm or other professional organization qualified to make the calculation that was selected by the Company and acceptable to the Executive (the “Accounting Firm”). The Company shall pay the fees and expenses of the Accounting Firm. All determinations made by the Accounting Firm under this SECTION 6.16 Section 6.15 are binding upon the Company and the Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and the Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to the Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide the Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by the Executive. The Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in part.

Code Section 280G. Notwithstanding (a) If any of the payments or benefits received or to be received by the Executive (including, without limitation, any payment or benefits received in connection with a change in control or the Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other provision plan, arrangement, or agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of this Agreement, if it is determined that Section 280G of the benefits or payments payable under this Agreement, taking into account other benefits or payments provided under other plans, agreements or arrangements, constitute Parachute Payments that would Code and will be subject Executive to the excise tax imposed under Section 4999 of the Code, it must be determined whether Executive will receive Code (the total payments due or the Reduced Amount. Executive will receive the Reduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from Executive receiving the total payments due. If it is determined that the total payments should be reduced to the Reduced Amount“Excise Tax”), the Company must promptly notify shall pay to the Executive, no later than the time such Excise Tax is required to be paid by the Executive of that determinationor withheld by the Company, including a copy an additional amount equal to the sum of the detailed Excise Tax payable by the Executive, plus the amount necessary to put the Executive in the same after-tax position (taking into account any and all applicable federal, state, and local excise, income, or other taxes at the highest applicable rates on such 280G Payments and on any payments under this section or otherwise) as if no Excise Tax had been imposed. (b) All calculations and determinations under this section shall be made by an independent accounting firm or other professional organization qualified to make the calculation that was selected independent tax counsel appointed by the Company and acceptable to Executive (the “Accounting FirmTax Counsel”)) whose determinations shall be conclusive and binding on the Company and the Executive for all purposes. For purposes of making the calculations and determinations required by this section, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this section. The Company shall pay bear all costs the fees and expenses of the Accounting Firm. All determinations made by the Accounting Firm under this SECTION 6.16 are binding upon the Company and Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be Counsel may reasonably incur in the order that would provide Executive connection with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by Executive. Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in partits services.

Code Section 280G. Notwithstanding any other provision of anything in this AgreementAgreement to the contrary, if it is determined that the aggregate amount of the benefits or and payments payable under this Agreement, taking into account and other payments and benefits or payments provided under other planswhich the Executive has the right to receive from the Corporation (including the value of any equity rights which become vested upon a Change in Control) (the “Total Payments”) would constitute a “parachute payment” as defined in Section 280G of the US Internal Revenue Code of 1986, agreements or arrangementsas amended, constitute Parachute Payments such that the Executive would be subject Executive to the excise tax under Code Section 4999 of the Code, it must then the Accounting Firm (defined below in this Section 9) shall determine which of the following has a greater aggregate value for the Executive, which greater value shall be determined paid to the Executive: (a) The after-tax amount that would be retained by the Executive (after taking into account all required income taxes payable by the Executive and the amount of any excise taxes that would be payable by the Executive under Code Section 4999 (the “Excise Taxes”)) if the Executive were to receive the Total Payments, or (b) The after-tax amount that would be retained by the Executive (after taking into account all federal, state and local income taxes payable by the Executive) if the Executive were to receive the Total Payments reduced to the largest amount that would result in no portion of the Total Payments being subject to Excise Taxes (the “Reduced Payments”). If the Total Payments are payable to the Executive, the Corporation shall not reimburse the Executive for any Excise Taxes imposed on the Executive or provide any such other compensation (whether through a tax gross-up or otherwise) to mitigate the effects of the Excise Taxes. If the Executive is to receive Reduced Payments, the Total Payments payable will be reduced or eliminated in the following order: (1) cash payments, (2) taxable benefits, (3) nontaxable benefits and (4) accelerated vesting of equity awards. The determination of whether the Executive will receive the total payments due Total Payments or the Reduced Amount. Executive will receive Payments, and the calculation of the amount of the Reduced Amount Payments, if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from Executive receiving the total payments due. If it is determined that the total payments should applicable, shall be reduced to the Reduced Amount, the Company must promptly notify Executive of that determination, including performed by a copy of the detailed calculations by an nationally recognized certified public accounting firm or other professional organization qualified to make the calculation that was selected by the Company and acceptable to Executive Corporation (the “Accounting Firm”). The Company In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Corporation may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall pay then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm. All determinations made Firm shall be borne solely by the Accounting Firm under this SECTION 6.16 are binding upon the Company and Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by Executive. Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in partCorporation.

Code Section 280G. Notwithstanding If any other provision payment or benefit the Executive would receive pursuant to a Change of Control from the Company or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this Agreementsentence, if it is determined that be subject to the benefits or payments payable under this Agreement, taking into account other benefits or payments provided under other plans, agreements or arrangements, constitute Parachute Payments that would subject Executive to excise tax under imposed by Section 4999 of the CodeCode (the “Excise Tax”), it must then such Payment shall be determined whether Executive will receive the total payments due or equal to the Reduced Amount. Executive will receive The “Reduced Amount” shall be either (x) the Reduced Amount if largest portion of the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. Any reduction shall be made in the following manner: first a pro rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code. Reduction in either cash payments or equity compensation benefits shall be made pro rata between and among benefits which are subject to Section 409A of the Code and benefits which are exempt from Executive receiving Section 409A of the total payments dueCode. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If it the accounting firm so engaged by the Company is determined serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Executive within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the total payments should be reduced Company or the Executive) or such other time as requested by the Company or the Executive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, the Company must promptly notify Executive of that determination, including a copy of the detailed calculations by an accounting firm or other professional organization qualified to make the calculation that was selected by it shall furnish the Company and the Executive with an opinion reasonably acceptable to the Executive (the “Accounting Firm”)that no Excise Tax will be imposed with respect to such Payment. The Company shall pay the fees and expenses Any good faith determinations of the Accounting Firm. All determinations accounting firm made by the Accounting Firm under this SECTION 6.16 are hereunder shall be final, binding and conclusive upon the Company and the Executive, . The Company agrees to cooperate with the Executive to minimize the amount of any payment to the Executive that is subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by Executive. Executive shall at any time have of the unilateral right Code, including soliciting the consent of the Company’s stockholders, as applicable, to forfeit any equity grant in whole or in partsuch payment under Section 280G(b)(5) of the Code.

Code Section 280G. Notwithstanding any other provision In the event that part or all of this Agreementthe consideration, if it is determined that the compensation or benefits or payments payable to be paid to Executive under this AgreementAgreement together with the aggregate present value of payments, taking into account other consideration, compensation and benefits or payments provided under all other plans, arrangements and agreements or arrangementsapplicable to Executive, constitute Parachute Payments that would “excess parachute payments” under Section 280G(b) of the Code subject Executive to an excise tax under Section 4999 of the CodeCode (collectively, it must the “Parachute Amount”), the amount of excess parachute payments which would otherwise be determined whether payable to Executive will or for Executive’s benefit under this Agreement shall be reduced to the extent necessary so that no amount of the Parachute Amount is subject to an excise tax under Section 4999 of the Code (the “Reduced Amount”); provided that such amounts shall not be so reduced if, without such reduction, Executive would be entitled to receive and retain, on a net after tax basis (including, without limitation, after any excise taxes payable under Section 4999), an amount of the total payments due or Parachute Amount which is greater than the amount, on a net after tax basis, that Executive would be entitled to retain upon receipt of the Reduced Amount. Executive will receive If the Reduced Amount if the Reduced Amount foregoing determination results in equal or greater Net After Tax Receipts than a reduction of the Net After Tax Receipts that would result from Executive receiving the total payments due. If it is determined that the total payments should be reduced to by the Reduced Amount, such reduction in payments due under this Agreement shall be first applied to reduce any cash severance payments that Executive would otherwise be entitled to receive hereunder and shall thereafter be applied to reduce other payments and benefits in a manner that would not result in subjecting Executive to additional taxation under Section 409A of the Code. Within ten days following such determination, but not later than thirty days following the date of the event under Section 280G(b)(2)(A)(i), the Company must shall pay or distribute to Executive or for Executive’s benefit such amounts as are then due to Executive under this Agreement and shall promptly notify pay or distribute to Executive or for his or her benefit in the future such amounts as become due to Executive under this Agreement. Unless the Executive and the Company otherwise agree in writing, any determination required under this Section 8.2 shall be made in writing by the Company’s independent public accountants immediately prior to the Change of that determination, including a copy of the detailed calculations by an accounting firm Control or such other professional organization qualified to make the calculation that was selected person or entity as determined in good faith by the Company and acceptable to Executive (the “Accounting Firm”), whose determination shall be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 8.2, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Executive and the Company shall furnish to the COC Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section 8.2. The Company shall pay the fees and expenses of the Accounting Firm. All determinations made by bear all costs the Accounting Firm under may incur in connection with any calculations contemplated by this SECTION 6.16 are binding upon the Company and Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by Executive. Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in part8.2.

Code Section 280G. Notwithstanding any other provision In the event that part or all of this Agreementthe consideration, if it is determined that the compensation or benefits or payments payable to be paid to Executive under this AgreementAgreement together with the aggregate present value of payments, taking into account other consideration, compensation and benefits or payments provided under all other plans, arrangements and agreements or arrangementsapplicable to Executive, constitute Parachute Payments that would “excess parachute payments” under Section 280G(b) of the Code subject Executive to an excise tax under Section 4999 of the CodeCode (collectively, it must the “Parachute Amount”), the amount of excess parachute payments which would otherwise be determined whether payable to Executive will or for Executive’s benefit under this Agreement shall be reduced to the extent necessary so that no amount of the Parachute Amount is subject to an excise tax under Section 4999 of the Code (the “Reduced Amount”); provided that such amounts shall not be so reduced if, without such reduction, Executive would be entitled to receive and retain, on a net after tax basis (including, without limitation, after any excise taxes payable under Section 4999), an amount of the total payments due or Parachute Amount which is greater than the amount, on a net after tax basis, that Executive would be entitled to retain upon receipt of the Reduced Amount. Executive will receive If the Reduced Amount if the Reduced Amount foregoing determination results in equal or greater Net After Tax Receipts than a reduction of the Net After Tax Receipts that would result from Executive receiving the total payments due. If it is determined that the total payments should be reduced to by the Reduced Amount, such reduction in payments due under this Agreement shall be first applied to reduce any cash severance payments that Executive would otherwise be entitled to receive hereunder and shall thereafter be applied to reduce other payments and benefits in a manner that would not result in subjecting Executive to additional taxation under Section 409A of the Code. Within ten days following such determination, but not later than thirty days following the date of the event under Section 280G(b)(2)(A)(i), the Company must shall pay or distribute to Executive or for Executive’s benefit such amounts as are then due to Executive under this Agreement and shall promptly notify pay or distribute to Executive or for his or her benefit in the future such amounts as become due to Executive under this Agreement. Unless the Executive and the Company otherwise agree in writing, any determination required under this Section 8.2 shall be made in writing by the Company’s independent public accountants immediately prior to the Change of that determination, including a copy of the detailed calculations by an accounting firm Control or such other professional organization qualified to make the calculation that was selected person or entity as determined in good faith by the Company and acceptable to Executive (the “Accounting Firm”), whose determination shall be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 8.2, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Executive and the Company shall furnish to the CEO COC Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section 8.2. The Company shall pay the fees and expenses of the Accounting Firm. All determinations made by bear all costs the Accounting Firm under may incur in connection with any calculations contemplated by this SECTION 6.16 are binding upon the Company and Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by Executive. Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in part8.2.