Common use of Deductibility Clause in Contracts

Deductibility. (A) Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee in connection with a Change in Control or the termination of the Employee's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Employer, any Person whose actions result in a Change in Control or any Person affiliated with the Employer or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Employer, an affiliate or Person making such payment or providing such benefit as a result of section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement), the cash Severance Payments shall first be reduced (if necessary, to zero), and the noncash Severance Payments shall thereafter be reduced (if necessary, to zero); PROVIDED, HOWEVER, that the Employee may elect (at any time prior to the delivery of a Notice of Termination hereunder) to have the noncash Severance Payments reduced (or eliminated) prior to any reduction of the cash Severance Payments. (B) For purposes of this limitation, (i) no portion of the Total Payments the receipt or enjoyment of which the Employee shall have effectively waived in writing prior to the delivery of a Notice of Termination shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel (the "Tax Counsel") reasonably acceptable to the Employee and selected by the accounting firm which was, immediately prior to the Change in Control, the Employer's independent auditor (the "Auditor") does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Severance Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions by reason of section 280G of the Code, in the opinion of the Tax Counsel, and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. (C) If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Employee and the Employer in applying the terms of this Section 10.2, the aggregate "parachute payments" paid to or for the Employee's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of section 280G of the Code, then the Employee shall have an obligation to pay the Employer upon demand an amount equal to the sum of (i) the excess of the aggregate "parachute payments" paid to or for the Employee's benefit over the aggregate "parachute payments" that could have been paid to or for the Employee's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at one hundred twenty percent (120%) of the rate provided in section 1274(b)(2)(B) of the Code from the date of the Employee's receipt of such excess until the date of such payment.

Deductibility. (A) Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee in connection with a Change in Control or the termination of the Employee's ’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Employer, any Person whose actions result in a Change in Control or any Person affiliated with the Employer or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "“Total Payments"”) would not be deductible (in whole or part), by the Employer, an affiliate or Person making such payment or providing such benefit as a result of section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement), the cash Severance Payments shall first be reduced (if necessary, to zero), and the noncash Severance Payments shall thereafter be reduced (if necessary, to zero); PROVIDED, HOWEVER, that the Employee may elect (at any time prior to the delivery of a Notice of Termination hereunder) to have the noncash non-cash Severance Payments reduced (or eliminated) prior to any reduction of the cash Severance Payments. (B) For purposes of this limitation, (i) no portion of the Total Payments the receipt or enjoyment of which the Employee shall have effectively waived in writing prior to the delivery of a Notice of Termination shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel (the "“Tax Counsel"”) reasonably acceptable to the Employee and selected by the accounting firm which was, immediately prior to the Change in Control, the Employer's ’s independent auditor (the "“Auditor"”) does not constitute a "“parachute payment" ” within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A280G(b) (4)(A) of the Code, (iii) the Severance Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions by reason of section 280G of the Code, in the opinion of the Tax Counsel, and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. (C) If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Employee and the Employer in applying the terms of this Section 10.2, the aggregate "“parachute payments" ” paid to or for the Employee's ’s benefit are in an amount that would result in any portion of such "“parachute payments" ” not being deductible by reason of section 280G of the Code, then the Employee shall have an obligation to pay the Employer upon demand an amount equal to the sum of (i) the excess of the aggregate "“parachute payments" ” paid to or for the Employee's ’s benefit over the aggregate "“parachute payments" ” that could have been paid to or for the Employee's ’s benefit without any portion of such "“parachute payments" ” not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at one hundred twenty percent (120%) of the rate provided in section 1274(b)(2)(B) of the Code from the date of the Employee's ’s receipt of such excess until the date of such payment.

Deductibility. (A) Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee in connection with a Change in Control or the termination of the Employee's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Employer, any Person whose actions result in a Change in Control or any Person affiliated with the Employer or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Employer, an affiliate or Person making such payment or providing such benefit as a result of section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement), the cash Severance Payments shall first be reduced (if necessary, to zero), and the noncash Severance Payments shall thereafter be reduced (if necessary, to zero); PROVIDED, HOWEVER, that the Employee may elect (at any time prior to the delivery of a Notice of Termination hereunder) to have the noncash non-cash Severance Payments reduced (or eliminated) prior to any reduction of the cash Severance Payments. (B) For purposes of this limitation, (i) no portion of the Total Payments the receipt or enjoyment of which the Employee shall have effectively waived in writing prior to the delivery of a Notice of Termination shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel (the "Tax Counsel") reasonably acceptable to the Employee and selected by the accounting firm which was, immediately prior to the Change in Control, the Employer's independent auditor (the "Auditor") does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Severance Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions by reason of section 280G of the Code, in the opinion of the Tax Counsel, and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. (C) If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Employee and the Employer in applying the terms of this Section 10.2, the aggregate "parachute payments" paid to or for the Employee's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of section 280G of the Code, then the Employee shall have an obligation to pay the Employer upon demand an amount equal to the sum of (i) the excess of the aggregate "parachute payments" paid to or for the Employee's benefit over the aggregate "parachute payments" that could have been paid to or for the Employee's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at one hundred twenty percent (120%) of the rate provided in section 1274(b)(2)(B) of the Code from the date of the Employee's receipt of such excess until the date of such payment.

Deductibility. (A) Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee in connection with a Change in Control or the termination of the Employee's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Employer, any Person whose actions result in a Change in Control or any Person affiliated with the Employer or such Person) (all such payments and benefitsbene fits, including the Severance Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Employer, an affiliate or Person making such payment or providing such benefit as a result of section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement), the cash Severance Payments shall first be reduced (if necessary, to zero), and the noncash Severance Payments shall thereafter be reduced (if necessary, to zero); PROVIDED, HOWEVER, that the Employee may elect (at any time prior to the delivery of a Notice of Termination hereunder) to have the noncash non cash Severance Payments reduced (or eliminated) prior to any reduction of the cash Severance Payments. (B) For purposes of this limitation, (i) no portion of the Total Payments the receipt or enjoyment of which the Employee shall have effectively waived in writing prior to the delivery of a Notice of Termination shall be taken into accountac count, (ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel (the "Tax Counsel") reasonably acceptable to the Employee and selected by the accounting firm which was, immediately prior to the Change in Control, the Employer's independent auditor (the "Auditor") does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Severance Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions by reason of section 280G of the Code, in the opinion of the Tax Counsel, and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. (C) If it is established pursuant to a final determination deter- mination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Employee and the Employer in applying the terms of this Section 10.2, the aggregate "parachute payments" paid to or for the Employee's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of section 280G of the Code, then the Employee shall have an obligation to pay the Employer upon demand an amount equal to the sum of (i) the excess of the aggregate "parachute payments" paid to or for the Employee's benefit over the aggregate "parachute payments" that could have been paid to or for the Employee's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at one hundred twenty percent (120%) of the rate provided in section 1274(b)(2)(B) of the Code from the date of the Employee's receipt of such excess until the date of such payment.