Common use of Conditional Cap on Severance Pay Clause in Contracts

Conditional Cap on Severance Pay. If the Employee is a “disqualified individual” (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), and if the payments to Employee pursuant to this Agreement (when considered with all other payments made to Employee which are “parachute payments” as defined in Section 280G of the Code the amount of all such payments, collectively, the “Parachute Payment”) result in Employee becoming liable for the payment of any excise taxes pursuant to Section 4999 of the Code (“280G Excise Tax”), Employee will receive either (i) the severance benefits payable pursuant to this Section 1.2 or (ii) the severance benefits payable pursuant to this Section 1.2 as reduced to avoid imposition of the 280G Excise Tax (the “Conditional Capped Amount”), whichever would result in the greatest after-tax (taking into account all federal, state and local income taxes and the Section 4999 of the Code excise tax) payment. Not more than fourteen (14) days following Termination of Employment, Company will notify Employee in writing (i) whether the severance benefits payable pursuant to this Section 1.2 when added to any other Parachute Payments payable to Employee exceed an amount equal to 299% (the “299% Amount”) of Employee’s “base amount” as defined in Section 280G(b)(3) of the Code, (ii) the amount that is equal to the 299% Amount, (iii) whether the severance benefit described in Section 1.2(e)(i) or the Conditional Capped Amount pursuant to section 1.2(e)(ii) is greater on an after-tax basis and (iv) if the Conditional Capped Amount is the greater amount, the amount that the severance benefits payable pursuant to this Section 1.2 must be reduced to equal such amount. Such reduction order may be elected by the Employee at the time to the extent legally permitted and not a violation of Code Section 280G or 409A and, if it is or not elected within ten (10) days of the notification, it shall be done in the following order: (a) all cash severance in the reverse order to be received, (b) all equity valued without regard to Treas. Reg. §1.280G Q&A 24(c) in reverse order of vesting and (c) all equity valued pursuant to Treas. Reg. §1.280G Q&A 24(c) in reverse order of vesting. The calculations and determinations described in this section will be made by Company’s public accounting firm in accordance with Section 280G of the Code or any successor provision thereto. The costs of obtaining such determination will be borne by Company. Company’s obligations pursuant to this Section 1.2 shall survive Employee’s death.

Conditional Cap on Severance Pay. If the Employee is a “disqualified individual” (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), and if the payments to Employee Executive pursuant to this Agreement (when considered with all other payments made to Employee which Executive as a result of a Termination of Employment that are “parachute payments” as defined in subject to Section 280G of the Code Code) (the amount of all such payments, collectively, the “Parachute Payment”) result in Employee Executive becoming liable for the payment of any excise taxes pursuant to Section section 4999 of the Code (“280G Excise Tax”), Employee . Executive will receive either the greater on an after-tax basis of (i) the severance benefits payable pursuant to this Section 1.2 or (ii) the severance benefits payable pursuant to this Section 1.2 as reduced to avoid imposition of the 280G Excise Tax (the “Conditional Capped Amount”), whichever would result in the greatest after-tax (taking into account all federal, state and local income taxes and the Section 4999 of the Code excise tax) payment. Not more than fourteen (14) days following the Termination of Employment, Employment Company will notify Employee Executive in writing (iA) whether the severance benefits payable pursuant to this Section 1.2 when added to any other Parachute Payments payable to Employee Executive exceed an amount equal to 299% (the “299% Amount”) of EmployeeExecutive’s “base amount” as defined in Section 280G(b)(3) of the Code, (iiB) the amount that is equal to the 299% Amount, (iiiC) whether the severance benefit described in Section 1.2(e)(i1.2(g)(i) or the Conditional Capped Amount pursuant to section 1.2(e)(ii1.2(g)(ii) is greater on an after-tax basis and (ivC) if the Conditional Capped Amount is the greater amount, the amount that the severance benefits payable pursuant to this Section 1.2 must be reduced to equal such amount. Such reduction order may be elected by The calculation of the Employee at 299% Amount, the time to determination of whether the extent legally permitted and not a violation of Code termination benefits described in Section 280G 1.2(g)(i) or 409A the Conditional Capped Amount described in Section 1.2(g)(ii) is greater on an after-tax basis and, if it the Conditional Capped Amount in Section 1.2(g)(ii) is or not elected within ten (10) days the greater amount, the determination of how much Executive’s termination benefits must be reduced in order to avoid application of the notification, it shall be done in the following order: (a) all cash severance in the reverse order to be received, (b) all equity valued without regard to Treas. Reg. §1.280280G Q&A 24(c) in reverse order of vesting and (c) all equity valued pursuant to Treas. Reg. §1.280G Q&A 24(c) in reverse order of vesting. The calculations and determinations described in this section Excise Tax will be made by Company’s public accounting firm in accordance with Section section 280G of the Code or any successor provision thereto. For purposes of making the reduction of amounts payable under this Agreement, such amounts shall be eliminated in the following order: (1) any cash compensation, (2) any health or welfare benefits, (3) any equity compensation, and (4) any other payments hereunder. Reductions of such amounts shall take place in the chronological order with respect to which such amounts would be paid from the date of the Termination of Employment absent any acceleration of payment. If the reduction of the amounts payable hereunder would not result in a reduction of the Parachute Payments to the Conditional Capped Amount, no amounts payable under this Agreement shall be reduced pursuant to this provision. The costs of obtaining such determination will be borne by Company. Company’s obligations pursuant to this Section 1.2 shall survive Employee’s death.

Conditional Cap on Severance Pay. If the Employee is a “disqualified individual” (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), and if the payments to Employee Executive pursuant to this Agreement (when considered with all other payments made to Employee which Executive as a result of a Termination of Employment that are “parachute payments” as defined in subject to Section 280G of the Code Code) (the amount of all such payments, collectively, the “Parachute Payment”) result in Employee Executive becoming liable for the payment of any excise taxes pursuant to Section section 4999 of the Code (“280G Excise Tax”), Employee Executive will receive either the greater on an after-tax basis of (i) the severance benefits payable pursuant to this Section 1.2 or (ii) the severance benefits payable pursuant to this Section 1.2 as reduced to avoid imposition of the 280G Excise Tax (the “Conditional Capped Amount”), whichever would result in the greatest after-tax (taking into account all federal, state and local income taxes and the Section 4999 of the Code excise tax) payment. Not more than fourteen (14) days following the Termination of Employment, Company will notify Employee Executive in writing (iA) whether the severance benefits payable pursuant to this Section 1.2 when added to any other Parachute Payments payable to Employee Executive exceed an amount equal to 299% (the “299% Amount”) of EmployeeExecutive’s “base amount” as defined in Section 280G(b)(3) of the Code, (iiB) the amount that is equal to the 299% Amount, (iiiC) whether the severance benefit described in Section 1.2(e)(i1.2(g)(i) or the Conditional Capped Amount pursuant to section 1.2(e)(ii1.2(g)(ii) is greater on an after-tax basis and (ivC) if the Conditional Capped Amount is the greater amount, the amount that the severance benefits payable pursuant to this Section 1.2 must be reduced to equal such amount. Such reduction order may be elected by The calculation of the Employee at 299% Amount, the time to determination of whether the extent legally permitted and not a violation of Code termination benefits described in Section 280G 1.2(g)(i) or 409A the Conditional Capped Amount described in Section 1.2(g)(ii) is greater on an after-tax basis and, if it the Conditional Capped Amount in Section 1.2(g)(ii) is or not elected within ten (10) days the greater amount, the determination of how much Executive’s termination benefits must be reduced in order to avoid application of the notification, it shall be done in the following order: (a) all cash severance in the reverse order to be received, (b) all equity valued without regard to Treas. Reg. §1.280280G Q&A 24(c) in reverse order of vesting and (c) all equity valued pursuant to Treas. Reg. §1.280G Q&A 24(c) in reverse order of vesting. The calculations and determinations described in this section Excise Tax will be made by Company’s public accounting firm in accordance with Section section 280G of the Code or any successor provision thereto. The costs of obtaining such determination will be borne by Company. Company’s obligations pursuant to this Section 1.2 shall survive Employee’s death.

Conditional Cap on Severance Pay. If the payments to Employee is pursuant to this Agreement (when considered with all other payments made to Employee as a “disqualified individual” (as defined in result of termination of Employee’s employment with Company that are subject to Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), and if the payments to Employee pursuant to this Agreement ) (when considered with all other payments made to Employee which are “parachute payments” as defined in Section 280G of the Code the amount of all such payments, collectively, the “Parachute Payment”) result in Employee becoming liable for the payment of any excise taxes pursuant to Section 4999 of the Code (“280G Excise Tax”), Employee will receive either (i) the severance benefits payable pursuant to this Section 1.2 or (ii) the severance benefits payable pursuant to this Section 1.2 as reduced to avoid imposition of the 280G Excise Tax (the “Conditional Capped Amount”), whichever would result in the greatest after-tax (taking into account all federal, state and local income taxes and the Section 4999 of the Code excise tax) payment. Not more than fourteen (14) days following Termination of Employment, Company will notify Employee in writing (i) whether the severance benefits payable pursuant to this Section 1.2 when added to any other Parachute Payments payable to Employee exceed an amount equal to 299% (the “299% Amount”) of Employee’s “base amount” as defined in Section 280G(b)(3) of the Code, (ii) the amount that is equal to the 299% Amount, (iii) whether the severance benefit described in Section 1.2(e)(i1.2(f)(i) or the Conditional Capped Amount pursuant to section 1.2(e)(ii1.2(f)(ii) is greater on an after-tax basis and (iv) if the Conditional Capped Amount is the greater amount, the amount that the severance benefits payable pursuant to this Section 1.2 must be reduced to equal such amount. Such reduction order may be elected by the Employee at the time to the extent legally permitted and not a violation of Code Section 280G or 409A and, if it is or not elected within ten (10) days of the notification, it shall be done in the following order: (a) all cash severance in the reverse order to be received, (b) all equity valued without regard to Treas. Reg. §1.280G Q&A 24(c) in reverse order of vesting and (c) all equity valued pursuant to Treas. Reg. §1.280G Q&A 24(c) in reverse order of vesting. The calculations and determinations described in this section will be made by Company’s public accounting firm in accordance with Section 280G of the Code or any successor provision thereto. The costs of obtaining such determination will be borne by Company. Company’s obligations pursuant to this Section 1.2 shall survive Employee’s death.

Conditional Cap on Severance Pay. If the Employee is a “disqualified individual” (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), and if the payments to Employee pursuant to this Agreement (when considered with all other payments made to Employee which are “parachute payments” as defined in Section 280G of the Code the amount of all such payments, collectively, the “Parachute Payment”) result in Employee becoming liable for the payment of any excise taxes pursuant to Section 4999 of the Code (“280G Excise Tax”), Employee will receive either (i) the severance benefits payable pursuant to this Section 1.2 or (ii) the severance benefits payable pursuant to this Section 1.2 as reduced to avoid imposition of the 280G Excise Tax (the “Conditional Capped Amount”), whichever would result in the greatest after-tax (taking into account all federal, state and local income taxes and the Section 4999 of the Code excise tax) payment. Not more than fourteen (14) days following Termination of Employment, Company will notify Employee in writing (i) whether the severance benefits payable pursuant to this Section 1.2 when added to any other Parachute Payments payable to Employee exceed an amount equal to 299% (the “299% Amount”) of Employee’s “base amount” as defined in Section 280G(b)(3) of the Code, (ii) the amount that is equal to the 299% Amount, (iii) whether the severance benefit described in Section 1.2(e)(i1.2(f)(i) or the Conditional Capped Amount pursuant to section 1.2(e)(ii1.2(f)(ii) is greater on an after-tax basis and (iv) if the Conditional Capped Amount is the greater amount, the amount that the severance benefits payable pursuant to this Section 1.2 must be reduced to equal such amount. Such reduction order may be elected by the Employee at the time to the extent legally permitted and not a violation of Code Section 280G or 409A and, if it is or not elected within ten (10) days of the notification, it shall be done in the following order: (a) all cash severance in the reverse order to be received, (b) all equity valued without regard to Treas. Reg. §1.280G Q&A 24(c) in reverse order of vesting and (c) all equity valued pursuant to Treas. Reg. §1.280G Q&A 24(c) in reverse order of vesting. The calculations and determinations described in this section will be made by Company’s public accounting firm in accordance with Section 280G of the Code or any successor provision thereto. The costs of obtaining such determination will be borne by Company. Company’s obligations pursuant to this Section 1.2 shall survive Employee’s death.

Conditional Cap on Severance Pay. a. If the Employee Executive is a “disqualified individual” (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), and if the payments to Employee the Executive pursuant to this Agreement or otherwise (when considered with all other payments made to Employee Executive which are “parachute payments” as defined in Section 280G of the Code Code) (the amount of all such payments, collectively, the “Parachute Payment”) result in Employee the Executive becoming liable for the payment of any excise taxes pursuant to Section 4999 of the Code (“280G Excise Tax”), Employee then the Company shall use commercially reasonable best efforts to take such actions as are necessary to avoid the imposition of the 280G Excise Tax, including, upon the written request of the Executive, that the Company obtain equityholder approval in accordance with the terms of Section 280G(b)(5)(B) of the Code. b. If the Parachute Payment is subject to the 280G Excise Tax, then, except to the extent the Executive has previously waived his rights with respect to the Parachute Payment, the Executive will receive either (i) the severance benefits payable pursuant to this Section 1.2 full amount of the Parachute Payment or (ii) the severance benefits payable pursuant to this Section 1.2 Parachute Payment as reduced to avoid imposition of the 280G Excise Tax (the “Conditional Capped Amount”), whichever would result of clauses (i) and (ii), after taking into account applicable federal, state, and local taxes and the 280G Excise Tax, results in the greatest receipt by the Executive, on an after-tax (taking into account all federalpresent value basis, state and local income taxes and the Section 4999 of the Code excise tax) payment. greatest portion of the Parachute Payment. c. Not more than fourteen (14) days following the earlier of the Termination of EmploymentEmployment or the date on which the Executive’s right to parachute payments becomes reasonably likely to occur, Company will notify Employee the Executive in writing of (iA) whether the severance benefits payable pursuant parachute payments to this Section 1.2 when added to any other Parachute Payments payable to Employee which the Executive is entitled exceed an amount equal to 299% (the “299% Amount”) of Employeethe Executive’s “base amount” as defined in Section 280G(b)(3) of the Code, (iiB) the amount that is equal to the 299% Amount, (iiiC) whether the severance benefit described in Section 1.2(e)(i) Parachute Payment or the Conditional Capped Amount pursuant to section 1.2(e)(iiSection 8(i) or (ii) is greater on an after-tax basis present value basis, and (ivD) if the Conditional Capped Amount is the greater amount, the amount that and the severance benefits payable pursuant to this Section 1.2 manner in which the Parachute Payment must be reduced to equal such amount. Such reduction order may be elected by the Employee Executive at the time to the extent legally permitted and not a violation of Code Section 280G or 409A and, if it is or is not elected within ten fifteen (1015) days of the notification, it shall be done in the following order: (a) all cash severance in the reverse order to be received, (b) all equity valued without regard to Treas. Reg. §1.280G Q&A 24(c1.280G-1, Q&A-24(c) in reverse order of vesting vesting, and (c) all equity valued pursuant to Treas. Reg. §1.280G Q&A 24(c1.280G-1, Q&A-24(c) in reverse order of vesting. . d. The calculations and determinations calculation of the 299% Amount, the determination of whether the termination benefits described in this section Section 8(i)(i) or the Conditional Capped Amount described in Section 8(i)(ii) is greater on an after-tax basis and, if the Conditional Capped Amount in Section 8(i)(ii) is the greater amount, the determination of how much the Executive’s termination benefits must be reduced in order to avoid application of the 280G Excise Tax will be made by Company’s public accounting firm in accordance with Section 280G of the Code or any successor provision thereto. The costs of the Company’s accounting firm may reasonably incur in connection with obtaining such determination will be borne by Company. Company’s obligations pursuant The Company and Executive shall use reasonable efforts to this Section 1.2 cause the accounting firm to make such calculations and determinations and to provide its calculations and determinations, and shall survive Employee’s deathfurnish the accounting firm with such information and documents as the accounting firm may reasonably request in order to make its determination.

Conditional Cap on Severance Pay. If the Employee Executive is a “disqualified individual” (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), and if the payments to Employee the Executive pursuant to this Agreement (when considered with all other payments made to Employee Executive which are “parachute payments” as defined in Section 280G of the Code Code) (the amount of all such payments, collectively, the “Parachute Payment”) result in Employee the Executive becoming liable for the payment of any excise taxes pursuant to Section 4999 of the Code (“280G Excise Tax”), Employee the Executive will receive either the greater on an after-tax basis of (i) the severance benefits payable pursuant to this Section 1.2 3.2 or (ii) the severance benefits payable pursuant to this Section 1.2 3.2 as reduced to avoid imposition of the 280G Excise Tax (the “Conditional Capped Amount”), whichever would result in the greatest after-tax (taking into account all federal, state and local income taxes and the Section 4999 of the Code excise tax) payment. Not more than fourteen (14) days following the Termination of Employment, Company will notify Employee the Executive in writing (iA) whether the severance benefits payable pursuant to this Section 1.2 3.2 when added to any other Parachute Payments payable to Employee the Executive exceed an amount equal to 299% (the “299% Amount”) of Employeethe Executive’s “base amount” as defined in Section 280G(b)(3) of the Code, (iiB) the amount that is equal to the 299% Amount, (iiiC) whether the severance benefit described in Section 1.2(e)(i3.2(e)(i) or the Conditional Capped Amount pursuant to section 1.2(e)(ii3.2(e)(ii) is greater on an after-tax basis and (ivC) if the Conditional Capped Amount is the greater amount, the amount that the severance benefits payable pursuant to this Section 1.2 3.2 must be reduced to equal such amount. Such reduction order may be elected by the Employee Executive at the time to the extent legally permitted and not a violation of Code Section 280G or 409A and, if it is or is not elected within ten (10) days of the notification, it shall be done in the following order: (a) all cash severance in the reverse order to be received, (b) all equity valued without regard to Treas. Reg. §1.280G Q&A 24(c1.280G-1, Q&A-24(c) in reverse order of vesting vesting, and (c) all equity valued pursuant to Treas. Reg. §1.280G Q&A 24(c1.280G-1, Q&A-24(c) in reverse order of vesting. The calculations and determinations calculation of the 299% Amount, the determination of whether the termination benefits described in this section Section 3.2(e)(i) or the Conditional Capped Amount described in Section 3.2(e)(ii) is greater on an after-tax basis and, if the Conditional Capped Amount in Section 3.2(e)(ii) is the greater amount, the determination of how much the Executive’s termination benefits must be reduced in order to avoid application of the 280G Excise Tax will be made by Company’s public accounting firm in accordance with Section section 280G of the Code or any successor provision thereto. The costs of obtaining such determination will be borne by Company. Company’s obligations pursuant to this Section 1.2 3.2 shall survive EmployeeExecutive’s death.

Conditional Cap on Severance Pay. If the payments to Employee is pursuant to this Agreement (when considered with all other payments made to Employee as a “disqualified individual” (as defined in result of Termination of Employment that are subject to Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), and if the payments to Employee pursuant to this Agreement ) (when considered with all other payments made to Employee which are “parachute payments” as defined in Section 280G of the Code the amount of all such payments, collectively, the “Parachute Payment”) result in Employee becoming liable for the payment of any excise taxes pursuant to Section 4999 of the Code (“280G Excise Tax”), Employee will receive either the greater on an after-tax basis of (i) the severance benefits payable pursuant to this Section 1.2 or (ii) the severance benefits payable pursuant to this Section 1.2 as reduced to avoid imposition of the 280G Excise Tax (the “Conditional Capped Amount”), whichever would result in the greatest after-tax (taking into account all federal, state and local income taxes and the Section 4999 of the Code excise tax) payment. Not more than fourteen (14) days following Termination of Employment, Company will notify Employee in writing (iA) whether the severance benefits payable pursuant to this Section 1.2 when added to any other Parachute Payments payable to Employee exceed an amount equal to 299% (the “299% Amount”) of Employee’s “base amount” as defined in Section 280G(b)(3) of the Code, (iiB) the amount that is equal to the 299% Amount, (iiiC) whether the severance benefit described in Section 1.2(e)(i1.2(f)(i) or the Conditional Capped Amount pursuant to section 1.2(e)(ii1.2(f)(ii) is greater on an after-tax basis and (ivC) if the Conditional Capped Amount is the greater amount, the amount that the severance benefits payable pursuant to this Section 1.2 must be reduced to equal such amount. Such reduction order may be elected by the Employee at the time to the extent legally permitted and not a violation of Code Section 280G or 409A and, if it is or not elected within ten (10) days of the notification, it shall be done in the following order: (a) all cash severance in the reverse order to be received, (b) all equity valued without regard to Treas. Reg. §1.280G Q&A 24(c) in reverse order of vesting and (c) all equity valued pursuant to Treas. Reg. §1.280G Q&A 24(c) in reverse order of vesting. The calculations and determinations described in this section will be made by Company’s public accounting firm in accordance with Section 280G of the Code or any successor provision thereto. The costs of obtaining such determination will be borne by Company. Company’s obligations pursuant to this Section 1.2 shall survive Employee’s death.

Conditional Cap on Severance Pay. If the Employee is a “disqualified individual” (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), and if the payments to Employee Executive pursuant to this Agreement (when considered with all other payments made to Employee which Executive as a result of a Termination of Employment that are “parachute payments” as defined in subject to Section 280G of the Code Code) (the amount of all such payments, collectively, the “"Parachute Payment”") result in Employee Executive becoming liable for the payment of any excise taxes pursuant to Section section 4999 of the Code (“"280G Excise Tax”"), Employee Executive will receive either the greater on an after-tax basis of (i) the severance benefits payable pursuant to this Section 1.2 or (ii) the severance benefits payable pursuant to this Section 1.2 as reduced to avoid imposition of the 280G Excise Tax (the “"Conditional Capped Amount”"), whichever would result in the greatest after-tax (taking into account all federal, state and local income taxes and the Section 4999 of the Code excise tax) payment. Not more than fourteen (14) days following the Termination of Employment, Company will notify Employee Executive in writing (iA) whether the severance benefits payable pursuant to this Section 1.2 when added to any other Parachute Payments payable to Employee Executive exceed an amount equal to 299% (the “"299% Amount”") of Employee’s “Executive's "base amount” " as defined in Section 280G(b)(3) of the Code, (iiB) the amount that is equal to the 299% Amount, (iiiC) whether the severance benefit described in Section 1.2(e)(i1.2(g)(i) or the Conditional Capped Amount pursuant to section 1.2(e)(ii1.2(g)(ii) is greater on an after-tax basis and (ivC) if the Conditional Capped Amount is the greater amount, the amount that the severance benefits payable pursuant to this Section 1.2 must be reduced to equal such amount. Such reduction order may be elected by The calculation of the Employee at 299% Amount, the time to determination of whether the extent legally permitted and not a violation of Code termination benefits described in Section 280G 1.2(g)(i) or 409A the Conditional Capped Amount described in Section 1.2(g)(ii) is greater on an after-tax basis and, if it the Conditional Capped Amount in Section 1.2(g)(ii) is or not elected within ten (10) days the greater amount, the determination of how much Executive's termination benefits must be reduced in order to avoid application of the notification, it shall be done in the following order: (a) all cash severance in the reverse order to be received, (b) all equity valued without regard to Treas. Reg. §1.280280G Q&A 24(c) in reverse order of vesting and (c) all equity valued pursuant to Treas. Reg. §1.280G Q&A 24(c) in reverse order of vesting. The calculations and determinations described in this section Excise Tax will be made by Company’s 's public accounting firm in accordance with Section section 280G of the Code or any successor provision thereto. The costs of obtaining such determination will be borne by Company. Company’s obligations pursuant to this Section 1.2 shall survive Employee’s death.