Common use of Following an IPO Clause in Contracts

Following an IPO. Notwithstanding any provision of the Agreement to the contrary, if any Payments the Executive would receive from the Company under the Agreement or otherwise in connection with a Change in Control after the completion of an IPO (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 10(b), would be subject to the excise tax imposed by Section 4999 of the Code, then the Executive will be entitled to receive either (x) the full amount of the Payments or (y) a portion of the Payments having a value equal to the Safe Harbor Amount, whichever of (x) and (y), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Executive on an after-tax basis, of the greatest portion of the Payments. Any determination required under this Section 10(b) shall be made in writing by the Accounting Firm, whose determination shall be conclusive and binding for all purposes upon the Company and the Executive. For purposes of making the calculations required by this Section 10(b), 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. If there is a reduction pursuant to this Section 10(b) of the Payments to be delivered to the Executive, such payments shall be reduced to the extent necessary to avoid application of the excise tax in the following order: (i) any cash severance based on a multiple of Base Salary or Annual Bonus, (ii) any other cash amounts payable to the Executive, (iii) benefits valued as parachute payments, and (iv) acceleration of vesting of any equity awards.