Common use of Compliance with Code Section 280G Clause in Contracts

Compliance with Code Section 280G. If any payments or benefits to which Executive is entitled under this Agreement (referred to in this paragraph 6(l) as the “Payments”) would cause Executive to be liable for the federal excise tax levied on certain “excess parachute payments” under Code Section 4999 (the “Excise Tax”), then the Payments shall be reduced (or repaid to the Company, if previously paid or provided) solely to the extent provided below. For purposes of this paragraph 6(l), the terms “excess parachute payment” and “parachute payment” will have the meanings assigned to them by Section 280G of the Code (“Section 280G”). If the Payments exceed 2.99 times Executive’s “Base Amount” (as defined in Section 280G), a “reduced payment amount” shall be calculated by reducing the Payments to the minimum extent necessary so that no portion of the Payments, as so reduced, shall constitute an excess parachute payment. Executive shall receive either (i) all Payments otherwise due to Executive, without reduction or repayment, or (ii) the reduced payment amount described in the preceding sentence, whichever will provide Executive with the greater after-tax economic benefit taking into account for these purposes any applicable Excise Tax. Whether Payments are required to be reduced/repaid pursuant to this paragraph 6(l), and the extent to which they are required to be so reduced/repaid, will be determined by the Company in good faith, and the Company will notify Executive in writing of its determination. Any such notice shall describe in reasonable detail the basis of the Company’s determination. If Executive accepts the Company’s determination, Executive shall so advise the Company of such decision within thirty (30) days of receipt of notice from the Company. If Executive objects to such determination within thirty (30) days of receipt of notice from the Company, the Company will retain, at its expense, a nationally recognized public accounting firm, employment consulting firm or law firm selected by the Company and reasonably acceptable to Executive to review the matter. Such firm shall meet with Executive and her representatives and the Company and its representatives and thereafter render its written opinion as to the extent, if any, that in such firm’s reasonable judgment the payments and benefits otherwise due to Executive hereunder must be reduced hereunder. The decision of such firm concerning the extent of any required reduction in such the Payments shall be final and binding on both Executive and the Company. If at the time of a change in control, the Company is a corporation described in Section 280G(b)(5)(A)(i) of the Code, and the imposition of an Excise Tax on the Payments could be avoided by approval of shareholders as described in Section 280G(b)(5)(B) of the Code, then the Company shall use reasonable best efforts to solicit a vote of such shareholders (described in Section 280G(b)(5)(B) of the Code), in which case the Company will, in good faith, cause such vote to be solicited, and Executive will reasonably cooperate and execute such waivers of compensation as may be necessary to enable the shareholder vote to comply with the requirements specified in Section 280G and the regulations promulgated thereunder. Executive shall have until the earlier of (i) ten business days after the Executive was notified that the Excise Tax could be imposed on the Payments and (ii) five business days prior to the date of the consummation of the transaction(s) that could cause the imposition of an Excise Tax on the Payments to provide written notice to the Company requesting the Company to solicit such a shareholder vote. Any Payments to which the Excise Tax would otherwise apply shall, to the extent permitted by applicable law, be treated as consideration for Executive’s compliance with the restrictive covenants set forth in paragraph 7.

Compliance with Code Section 280G. If You agree that the Company may withhold from any payments amounts payable to you hereunder all federal, state, local or benefits other taxes that the Company determines are required to which Executive is entitled under this Agreement be withheld pursuant to any applicable law or regulation. You further agree that if the Internal Revenue Service or other taxing authority (referred each, a Taxing Authority) asserts a liability against the Company for failure to withhold taxes on any payment hereunder, you will pay to the Company the amount determined by such Taxing Authority that had not been withheld within ninety (90) days of notice to you of such determination. Such notice shall include a copy of any correspondence received from a Taxing Authority with respect to such withholding. Notwithstanding the foregoing paragraph, if any payment or benefit you would receive pursuant to a change in this paragraph 6(l) as control of the Company or otherwise (“PaymentsPayment”) would cause Executive (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) be subject to be liable for the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code (the “Excise Tax”), then the Payments such Payment shall be reduced (or repaid to the Company, if previously paid or provided) solely to the extent provided belowReduced Amount. For purposes of this paragraph 6(l), the terms The “excess parachute payment” and “parachute payment” will have the meanings assigned to them by Section 280G of the Code (“Section 280G”). If the Payments exceed 2.99 times Executive’s “Base Reduced Amount” (as defined in Section 280G), a “reduced payment amount” shall be calculated by reducing either (x) the Payments to largest portion of the minimum extent necessary so Payment that would result in no portion of the Payments, as so reduced, shall constitute an excess parachute payment. Executive shall receive either (i) all Payments otherwise due Payment being subject to Executive, without reduction or repayment, the Excise Tax or (iiy) the reduced payment 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 your receipt, on an after-tax basis, of the greater amount of the Payment. If the Payment equals the Reduced Amount, the reduction shall occur in the following order: reduction of cash payments (in reverse chronological order of the date otherwise payable); cancellation of accelerated vesting of stock awards (in the reverse order of the date of grant); reduction of employee benefits (in reverse chronological order of the date otherwise payable). The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of any change in control shall perform all the foregoing calculations described in the preceding sentenceparagraph, whichever will provide Executive with including the greater after-tax economic benefit taking into account for these purposes any applicable Excise Taxamount of the parachute payment, if any. Whether Payments are required to be reduced/repaid pursuant to this paragraph 6(l), and If the extent to which they are required to be accounting firm so reduced/repaid, will be determined engaged by the Company in good faithis serving as accountant or auditor for the individual, and entity or group effecting the Company will notify Executive in writing of its determination. Any such notice shall describe in reasonable detail the basis of the Company’s determination. If Executive accepts the Company’s determination, Executive shall so advise the Company of such decision within thirty (30) days of receipt of notice from the Company. If Executive objects to such determination within thirty (30) days of receipt of notice from the Company, the Company will retain, at its expense, a nationally recognized public accounting firm, employment consulting firm or law firm selected by the Company and reasonably acceptable to Executive to review the matter. Such firm shall meet with Executive and her representatives and the Company and its representatives and thereafter render its written opinion as to the extent, if any, that in such firm’s reasonable judgment the payments and benefits otherwise due to Executive hereunder must be reduced hereunder. The decision of such firm concerning the extent of any required reduction in such the Payments shall be final and binding on both Executive and the Company. If at the time of a change in control, the Company is shall appoint a corporation described in Section 280G(b)(5)(A)(i) of different nationally recognized accounting firm to make the Codedeterminations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, and the imposition of an Excise Tax on the Payments could be avoided by approval of shareholders as described in Section 280G(b)(5)(B) of the Codetogether with detailed supporting documentation, then to the Company shall use reasonable best efforts and to solicit a vote of such shareholders you within fifteen (described in Section 280G(b)(5)(B15) of the Code), in which case the Company will, in good faith, cause such vote to be solicited, and Executive will reasonably cooperate and execute such waivers of compensation as may be necessary to enable the shareholder vote to comply with the requirements specified in Section 280G and the regulations promulgated thereunder. Executive shall have until the earlier of (i) ten business calendar days after the Executive was notified date on which your right to a Payment is triggered (if requested at that time by the Excise Tax could be imposed on Company or you) or such other time as requested by the Payments and (ii) five business days prior to the date Company or you. Any good faith determinations of the consummation of the transaction(s) that could cause the imposition of an Excise Tax on the Payments to provide written notice to accounting firm made hereunder shall be final, binding and conclusive upon the Company requesting the Company to solicit such a shareholder vote. Any Payments to which the Excise Tax would otherwise apply shall, to the extent permitted by applicable law, be treated as consideration for Executive’s compliance with the restrictive covenants set forth in paragraph 7and you.