Common use of Determination of Amount of Payment Clause in Contracts

Determination of Amount of Payment. In the event that any payments or other benefits received or to be received by the Executive pursuant to this Agreement (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this Section 3(c), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, the Executive shall receive either (x) the full amount of any parachute payment or (y) 2.99 times the Executive’s “base amount” (as such term is defined under the Parachute Rules), whichever of the foregoing amounts (after taking into account any applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Executive, on an after-tax basis, of the greater payment provided that (a) the acquiring person in the Change of Control, in its sole discretion, does not object thereto and does not impose on Asyst or its stockholders any added cost, price reduction, or other detriment therefrom (economic or otherwise as determined in Asyst’s sole discretion), and (b) the Executive deposits at least three (3) business days prior to consummation of the Change of Control with a party designated by Asyst a cash sum sufficient in the discretion of Asyst to fund all withholding payments that may arise in connection with the Executive’s parachute payments from any source. In the event a reduction provides the greater benefit Asyst shall reduce and cancel, and the Executive hereby waives, the parachute payment to the minimum extent necessary to equal the amount described in (y) above. In no event shall Asyst be required to gross up any payment or benefit to the Executive to avoid the effects of Section 280G of the Code or to pay any regular or excise taxes arising therefrom. Unless Asyst and the Executive otherwise agree in writing, any parachute payment calculation shall be made in writing by independent public accounts agreed to by Asyst and the Executive, whose calculations shall be conclusive and binding upon Asyst and the Executive for all purposes. Asyst and the Executive shall furnish to the accountants such information and documents as the accountants may reasonable request in order to make a parachute payment determination. If the Internal Revenue Service (the “IRS”) determines that a Payment is subject to the Excise Tax, then the following paragraph shall apply. Notwithstanding any reduction described in the immediately preceding paragraph (or in the absence of any such reduction), if the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of Payments, then the Executive shall be obligated to pay back to Asyst, within 30 days after final IRS determination, an amount of the Payments equal to the “Repayment Amount.” The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to Asyst so that the Executive’s net proceeds with respect to the Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on the Payments. If the Excise Tax is not eliminated pursuant to this paragraph, the Executive shall pay the Excise Tax.

Determination of Amount of Payment. In the event that any payments or other benefits received or to be received by the Executive pursuant to this Agreement (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 3(c), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, in accordance with this Section 3(c), such Payments shall be reduced to the Executive shall receive either (x) maximum amount that would result in no portion of the full amount of any parachute payment or (y) 2.99 times payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in the Executive’s “base amount” receipt of Payments that are greater than the net amount that he would receive hereunder (as such term is defined under the Parachute Rules), whichever after application of the foregoing amounts Excise Tax) if no reduction were made. The amount of required reduction, if any, shall be the smallest amount so that the Executive’s net proceeds with respect to the Payments (after taking into account payment of any applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Executiveshall be maximized, on an after-tax basis, of the greater payment provided that (a) the acquiring person in the Change of Control, in its sole discretion, does not object thereto and does not impose on Asyst or its stockholders any added cost, price reduction, or other detriment therefrom (economic or otherwise as determined in Asyst’s sole discretion), and (b) the Executive deposits at least three (3) business days prior to consummation of the Change of Control with a party designated by Asyst a cash sum sufficient in the discretion of Asyst to fund all withholding payments that may arise in connection with the him. The Executive’s parachute payments from reasonable determination of any source. In the event a required reduction provides the greater benefit Asyst shall reduce and cancel, and the Executive hereby waives, the parachute payment pursuant to the minimum extent necessary to equal the amount described in (ythis Section 3(c) above. In no event shall Asyst be required to gross up any payment or benefit to the Executive to avoid the effects of Section 280G of the Code or to pay any regular or excise taxes arising therefrom. Unless Asyst and the Executive otherwise agree in writing, any parachute payment calculation shall be made in writing by independent public accounts agreed to by Asyst and the Executive, whose calculations shall be conclusive and binding upon Asyst. Asyst and shall reduce Payments in accordance with this Section 3(c) only upon written notice from the Executive for all purposes. Asyst and indicating the Executive shall furnish to the accountants amount of such information and documents as the accountants may reasonable request in order to make a parachute payment determinationreduction, if any. If the Internal Revenue Service (the “IRS”) determines that a Payment is subject to the Excise Tax, then the following paragraph shall apply. Notwithstanding any reduction described in the immediately preceding paragraph (or in the absence of any such reduction), if the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of Payments, then the Executive he shall be obligated to pay back to Asyst, within 30 days after final IRS determination, an amount of the Payments equal to the “Repayment Amount.” The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to Asyst so that the Executive’s net proceeds with respect to the Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on the Payments. If the Excise Tax is not eliminated pursuant to this paragraph, the Executive shall pay the Excise Tax.

Determination of Amount of Payment. In the event that any payments or other benefits received or to be received by the Executive pursuant to this Agreement (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 3(c), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, in accordance with this Section 3(c), such Payments shall be reduced to the Executive shall receive either (x) maximum amount that would result in no portion of the full amount of any parachute payment or (y) 2.99 times payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in the Executive’s “base amount” receipt of Payments that are greater than the net amount that he would receive hereunder (as such term is defined under the Parachute Rules), whichever after application of the foregoing amounts Excise Tax) if no reduction were made. The amount of required reduction, if any, shall be the smallest amount so that the Executive’s net proceeds with respect to the Payments (after taking into account payment of any applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Executiveshall be maximized, on an after-tax basis, of the greater payment provided that (a) the acquiring person in the Change of Control, in its sole discretion, does not object thereto and does not impose on Asyst or its stockholders any added cost, price reduction, or other detriment therefrom (economic or otherwise as determined in Asyst’s sole discretion), and (b) the Executive deposits at least three (3) business days prior to consummation of the Change of Control with a party designated by Asyst a cash sum sufficient in the discretion of Asyst to fund all withholding payments that may arise in connection with the him. The Executive’s parachute payments from determination of any source. In the event a required reduction provides the greater benefit Asyst shall reduce and cancel, and the Executive hereby waives, the parachute payment pursuant to the minimum extent necessary to equal the amount described in (ythis Section 3(c) above. In no event shall Asyst be required to gross up any payment or benefit to the Executive to avoid the effects of Section 280G of the Code or to pay any regular or excise taxes arising therefrom. Unless Asyst and the Executive otherwise agree in writing, any parachute payment calculation shall be made in writing by independent public accounts agreed to by Asyst and the Executive, whose calculations shall be conclusive and binding upon Asyst. Asyst and shall reduce Payments in accordance with this Section 3(c) only upon written notice from the Executive for all purposes. Asyst and indicating the Executive shall furnish to the accountants amount of such information and documents as the accountants may reasonable request in order to make a parachute payment determinationreduction, if any. If the Internal Revenue Service (the “IRS”) determines that a Payment is subject to the Excise Tax, then the following paragraph shall apply. Notwithstanding any reduction described in the immediately preceding paragraph (or in the absence of any such reduction), if the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of Payments, then the Executive he shall be obligated to pay back to Asyst, within 30 days after final IRS determination, an amount of the Payments equal to the “Repayment Amount.” The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to Asyst so that the Executive’s net proceeds with respect to the Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on the Payments. If the Excise Tax is not eliminated pursuant to this paragraph, the Executive shall pay the Excise Tax.

Determination of Amount of Payment. In the event that any payments or other benefits received or to be received by the Executive pursuant to this Agreement (“"Payments”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and (ii) but for this Section 3(c), be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then, in accordance with this Section 3(c), such Payments shall be reduced to the Executive shall maximum amount that would result in no portion of the payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in the Executive's receipt of Payments that are greater than the net amount that he would receive either hereunder (xafter application of the Excise Tax) the full if no reduction were made. The amount of any parachute payment or (y) 2.99 times required reduction, if any, shall be the smallest amount so that the Executive’s “base amount” (as such term is defined under 's net proceeds with respect to the Parachute Rules), whichever of the foregoing amounts Payments (after taking into account payment of any applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Executiveshall be maximized, on an after-tax basis, of the greater payment provided that (a) the acquiring person in the Change of Control, in its sole discretion, does not object thereto and does not impose on Asyst or its stockholders any added cost, price reduction, or other detriment therefrom (economic or otherwise as determined in Asyst’s sole discretion), and (bby him. The Executive's determination of any required reduction pursuant to this Section 3(c) the Executive deposits at least three (3) business days prior to consummation of the Change of Control with a party designated by Asyst a cash sum sufficient in the discretion of Asyst to fund all withholding payments that may arise in connection with the Executive’s parachute payments from any source. In the event a reduction provides the greater benefit Asyst shall reduce and cancel, and the Executive hereby waives, the parachute payment to the minimum extent necessary to equal the amount described in (y) above. In no event shall Asyst be required to gross up any payment or benefit to the Executive to avoid the effects of Section 280G of the Code or to pay any regular or excise taxes arising therefrom. Unless Asyst and the Executive otherwise agree in writing, any parachute payment calculation shall be made in writing by independent public accounts agreed to by Asyst and the Executive, whose calculations shall be conclusive and binding upon Asyst. Asyst and shall reduce Payments in accordance with this Section 3(c) only upon written notice from the Executive for all purposes. Asyst and indicating the Executive shall furnish to the accountants amount of such information and documents as the accountants may reasonable request in order to make a parachute payment determinationreduction, if any. If the Internal Revenue Service (the “"IRS”") determines that a Payment is subject to the Excise Tax, then the following paragraph shall apply. Notwithstanding any reduction described in the immediately preceding paragraph (or in the absence of any such reduction), if the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of Payments, then the Executive he shall be obligated to pay back to Asyst, within 30 days after final IRS determination, an amount of the Payments equal to the “"Repayment Amount.” " The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to Asyst so that the Executive’s 's net proceeds with respect to the Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on the Payments. If the Excise Tax is not eliminated pursuant to this paragraph, the Executive shall pay the Excise Tax.