Common use of Limitation on Change in Control Payments Clause in Contracts

Limitation on Change in Control Payments. Notwithstanding anything in Section 12.1 or 12.2 to the contrary, if, with respect to a Participant, the acceleration of the vesting of an Award as provided in Section 12.1 or the payment of cash in exchange for all or part of a Stock-Based Award as provided in Section 12.2 (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other “payments” that such Participant has the right to receive from the Company or any corporation that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the “payments” to such Participant pursuant to Section 12.1 or 12.2 shall be reduced (or acceleration of vesting eliminated) to the largest amount as shall result in no portion of such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that such reduction shall be made only if the aggregate amount of the payments after such reduction exceeds the difference between (i) the amount of such payments absent such reduction, minus (ii) the aggregate amount of the excise tax imposed under Section 4999 of the Code attributable to any such excess parachute payments, and provided further that such payments shall be reduced (or acceleration of vesting eliminated) in the following order: (a) Options with an exercise price above fair market value that have a positive value for purposes of Section 280G of the Code, (b) pro rata among Awards that constitute deferred compensation under Section 409A of the Code, and (c) finally, among the Awards that are not subject to Section 409A of the Code. Notwithstanding the foregoing sentence, if a Participant is subject to a separate agreement with the Company or an Affiliate that expressly addresses the potential application of Section 280G or 4999 of the Code, then this Section 12.3 shall not apply and any “payments” to a Participant pursuant to Section 12.1 or 12.2 shall be treated as “payments” arising under such separate agreement.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 12.1 or 12.2 2.3 to the contrary, if, with respect to a the Participant, the acceleration of the vesting of an Award as provided in Section 12.1 the RSUs or the payment of cash in exchange for all or part of a Stock-Based Award the RSUs as provided in Section 12.2 above (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), together with any other “payments” that such the Participant has the right to receive from the Company or any corporation that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the “payments” to such the Participant pursuant to Section 12.1 or 12.2 shall as set forth herein will be reduced (or acceleration of vesting eliminated) to the largest amount as shall will result in no portion of such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that such reduction shall will be made only if the aggregate amount of the payments after such reduction exceeds the difference between (iA) the amount of such payments absent such reduction, reduction minus (iiB) the aggregate amount of the excise tax imposed under Section 4999 of the Code attributable to any such excess parachute payments; and provided, and provided further further, that such payments shall will be reduced (or acceleration of vesting eliminated) by first reducing or eliminating payments or benefits the full value of which are required to be recognized as contingent upon a Change in the following order: Control (a) Options determined in accordance with an exercise price above fair market value that have a positive value for purposes of Section 280G of the CodeTreasury Regulation § 1.280G-1, (b) pro rata among Awards that constitute deferred compensation under Section 409A of the CodeQ/A-24), and (c) finally, among the Awards that followed by reducing or eliminating payments or benefits which are not subject payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to Section 409A of be paid the Codefarthest in time from such date. Notwithstanding the foregoing sentence, if a the Participant is subject to a separate agreement with the Company or an Affiliate a Subsidiary that expressly addresses the potential application of Section Sections 280G or 4999 of the Code, then this Section 12.3 shall 2.3(b) will not apply apply, and any “payments” to a the Participant pursuant to Section 12.1 or 12.2 shall as provided herein will be treated as “payments” arising under such separate agreement; provided, however, such separate agreement may not modify the time or form of payment under any Incentive Award that constitutes deferred compensation subject to Section 409A of the Code if the modification would cause such Incentive Award to become subject to the adverse tax consequences specified in Section 409A of the Code.

Limitation on Change in Control Payments. Notwithstanding anything in this Section 12.1 or 12.2 13 to the contrary, if, with respect to a Participant, the acceleration of the vesting of an Award as provided in Section 12.1 or the payment of cash in exchange for all or part of a Stock-Based Award as provided in Section 12.2 (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other “payments” that such Participant has the right to receive from the Company or any corporation that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the “payments” to such Participant pursuant to Section 12.1 15.2 or 12.2 shall Section 15.3 of this Plan will be reduced (or acceleration of vesting eliminated) to the largest amount as shall will result in no portion of such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that such reduction shall will be made only if the aggregate amount of the payments after such reduction exceeds the difference between (ia) the amount of such payments absent such reduction, reduction minus (iib) the aggregate amount of the excise tax imposed under Section 4999 of the Code attributable to any such excess parachute payments; and provided, and provided further that such payments shall will be reduced (or acceleration of vesting eliminated) in the following order: (a) by first eliminating vesting of Options with an exercise price above fair market value the then Fair Market Value of a share of Common Stock that have a positive value for purposes of Section 280G of the Code, (b) followed by reducing or eliminating payments or benefits pro rata among Awards that constitute are deferred compensation under subject to Section 409A of the Code, and (c) finallyand, if a further reduction is necessary, by reducing or eliminating payments or benefits pro rata among the Awards that are not subject to Section 409A of the Code. Notwithstanding the foregoing sentence, if a Participant is subject to a separate agreement with the Company or an Affiliate a Subsidiary that expressly addresses the potential application of Section 280G or 4999 of the Code, then this Section 12.3 shall 15.4 will not apply and any “payments” to a Participant pursuant to Section 12.1 or 12.2 shall 15 of this Plan will be treated as “payments” arising under such separate agreement; provided, however, such separate agreement may not modify the time or form of payment under any Award that constitutes deferred compensation subject to Section 409A of the Code if the modification would cause such Award to become subject to the adverse tax consequences specified in Section 409A of the Code.

Limitation on Change in Control Payments. Notwithstanding ---------------------------------------- anything in Section 12.1 or 12.2 this Agreement to the contrary, if, with respect to a Participant, the acceleration if any of the vesting of an Award as payments or benefits to be made or provided in Section 12.1 or the payment of cash in exchange for all or part of a Stock-Based Award as provided in Section 12.2 (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code)connection with this Agreement, together with any other “payments” that such Participant has , benefits or awards which you have the right to receive from the Company Company, or any corporation that which is a member of an “"affiliated group” " (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a membermember ("Affiliate"), would constitute a “an "excess parachute payment” " (as defined in Section 280G(b)(2280G(b) of the Code), then two calculations will be performed. In the “first calculation, the payments” , benefits or awards to such Participant be received solely pursuant to Section 12.1 or 12.2 shall this Agreement (and excluding any benefits to be received from the existing Stock Option and Incentive Plan) will be reduced by the amount the Company deems necessary so that none of the payments or benefits under the Agreement (or acceleration including those from the existing Stock Option and Incentive Plan) are excess parachute payments. In the second calculation, the payments will not be reduced so as to eliminate an excess parachute payment, but will be reduced by the amount of vesting eliminated) to the largest amount as shall result in no portion of such “payments” being subject to the applicable excise tax that the officer will pay related to all change in control benefits received as imposed by Section 4999 of the Code; provided. The two calculations will be compared and the calculation providing the largest net payment to the employee will be utilized to determine the change in control payments made to the officer. The calculations must be made in good faith by legal counsel or a certified public accountant selected by the Company, howeverand such determination will be conclusive and binding upon you and the Company. If a reduction in payments or benefits is required by the comparison above, that such reduction the payments or benefits under the Agreement shall be made only if reduced in the aggregate amount of the payments after such reduction exceeds the difference between (i) order that minimizes the amount of such total reduction in payments absent such reduction, minus (ii) and benefits under the aggregate amount Agreement as a result of the excise tax imposed under Section 4999 of the Code attributable to any such excess parachute payments, and provided further that such payments shall be reduced (or acceleration of vesting eliminated) in the following order: (a) Options with an exercise price above fair market value that have a positive value for purposes of Section 280G of the Code, (b) pro rata among Awards that constitute deferred compensation under Section 409A of the Code, and (c) finally, among the Awards that are not subject to Section 409A of the Code. Notwithstanding the foregoing sentence, if a Participant is subject to a separate agreement with the Company or an Affiliate that expressly addresses the potential application of Section 280G or 4999 of the Code, then this Section 12.3 shall not apply and any “payments” to a Participant pursuant to Section 12.1 or 12.2 shall be treated as “payments” arising under such separate agreementprovision.