Common use of IRC Section 280G Clause in Contracts

IRC Section 280G. Notwithstanding any provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any amount or benefit to be paid or provided by the Company or its affiliates to the Executive or the Executive’s benefit pursuant to this Agreement or otherwise (“Covered Payments”) would be an “excess parachute payment,” within the meaning of Section 280G of the IRC, but for this Section 16(k), then the Covered Payments shall be reduced to the minimum extent necessary (but in no event less than zero) so that no portion of any Covered Payments, as so reduced, constitutes an excess parachute payment, but only if and to the extent that such reduction will also result in, after taking into account all state, local and federal taxes applicable to the Executive (computed at the highest applicable marginal rate), including any taxes payable pursuant to Section 4999 of the IRC (and any similar tax that may hereafter be imposed under any successor provision or by any taxing authority), greater after-tax proceeds to the Executive than the after-tax proceeds to the Executive computed without regard to any such reduction. The determination of whether any reduction in such Covered Payments is required pursuant to this Section 16(k) shall be made by a firm of independent certified public accountants or a law firm selected by the Company. In the event that any Covered Payment is required to be reduced pursuant to this Section 16(k), the Executive shall be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section 16(k). The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within ten (10) business days of the date on which he is notified of the determination that a reduction in Covered Payments is required under this Section 16(k), the Company may affect such reduction in any manner it deems appropriate.

IRC Section 280G. Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any provision payment or distribution by Employer to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement to the contrary, if any amount or benefit to be paid or provided by the Company or its affiliates to the Executive or the Executive’s benefit pursuant to this Agreement or otherwise otherwise) (a “Covered PaymentsPayment”) would be an “excess parachute payment,” within the meaning nondeductible by Employer for federal income tax purposes because of Section 280G of the IRCInternal Revenue Code of 1986, but for this Section 16(kas amended (the “Code”), then the Covered Payments aggregate present value of amounts payable or distributable to or for the benefit of Executive pursuant to this Agreement (“Agreement Payments”) shall be reduced (a “Reduction”) to the minimum extent necessary (necessary, but in no event less than not below zero) , so that no portion of any Covered Payments, as so reduced, constitutes an excess parachute payment, but only if and to the extent that such reduction will also result in, after taking into account all state, local and federal taxes applicable to the Executive (computed at the highest applicable marginal rate), including any taxes payable Agreement Payments is nondeductible by Employer pursuant to Section 4999 280G of the IRC (and Code. The Reduction shall be applied before any similar tax reduction of any other Payments that may hereafter be imposed under any successor provision are not Agreement Payments unless the plan or by any taxing authorityagreement calling for such Payments expressly provides to the contrary making specific reference to this Agreement. For purposes of this Section 5(h), greater after-tax proceeds to the Executive than the after-tax proceeds to the Executive computed without regard to any such reduction. The determination of whether any reduction in such Covered Payments is required pursuant to this Section 16(k) present value shall be made by a firm determined in accordance with Section 280G(d)(4) of independent certified public accountants or a law firm selected by the CompanyCode. In the event that a Reduction is required, the Agreement Payments to be reduced will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to Executive until the Reduction is achieved. Employer shall select a firm of certified public accountants of national standing, (the “Accounting Firm”), which may be the firm regularly auditing the financial statements of Employer or any Covered Payment is affiliate of Employer. The Accounting Firm shall make all determinations required to be reduced pursuant to this Section 16(k), the Executive shall be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section 16(k). The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within ten (10) business days of the date on which he is notified of the determination that a reduction in Covered Payments is required made under this Section 16(k5(h) and shall provide detailed supporting calculations to Employer and Executive within 30 days after the date of termination of Executive’s employment with Employer or such earlier time as is requested by Employer. Any such determination by the Accounting Firm shall be binding upon Employer and Executive. The Accounting Firm shall determine which and how much of the Agreement Payments shall be eliminated or reduced consistent with the requirements of this Section 5(h), the Company may affect such reduction in any manner it deems appropriate.