Common use of Limitation on Parachute Payments Clause in Contracts

Limitation on Parachute Payments. a) If it is determined that any payment or benefit provided to or for the benefit of Executive (a “Payment”), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would be subject to the excise tax imposed by Code section 4999 or any interest or penalties with respect to such excise tax (such excise tax together with any such interest and penalties, shall be referred to as the “Excise Tax”), then a calculation shall first be made under which such payments or benefits provided to Executive are reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax (the “4999 Limit”). Parent shall then compare (a) Executive’s Net After-Tax Benefit (as defined below) assuming application of the 4999 Limit with (b) Executive’s Net After-Tax Benefit without application of the 4999 Limit. “Net After-Tax Benefit” shall mean the sum of (i) all payments that Executive receives or is entitled to receive that are contingent on a change in the ownership or effective control of Parent or in the ownership of a substantial portion of the assets of Parent within the meaning of Code section 280G(b)(2), less (ii) the amount of federal, state, local, employment, and Excise Tax (if any) imposed with respect to such payments. In the event (a) is greater than (b), Executive shall receive Payments solely up to the 4999 Limit. In the event (b) is greater than (a), then Executive shall be entitled to receive all such Payments, and shall be solely liable for any and all Excise Tax related thereto. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits is subject to the excise tax under Section 4999 of the Code, the reduction shall occur in the following order: (1) reduction of the severance payments under Section 5(c)(i); (2) cancellation of accelerated vesting of equity awards; and (3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Executive’s equity awards.

Limitation on Parachute Payments. a) If it is determined Notwithstanding anything contained in this Agreement to the contrary, to the extent that the Employee becomes entitled to any payment or benefit provided distribution of any type under this Section 5 ("Termination Payments") and that payment or distribution would be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), either alone or in conjunction with any other payment or distribution of any type to or for the benefit Employee by the Company or any of Executive (a “Payment”)its affiliates, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or restricted stock granted by the Company pursuant to this Agreement or otherwise) (collectively, the "Total Payments") then the Termination Payments shall be reduced (but not below zero) so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause any portion of the Total Payments to be subject to the excise tax imposed by Code section Section 4999 or any interest or penalties with respect of the Code; provided that such reduction to the Termination Payments shall be made only if the total after-tax benefit to the Employee is greater after giving effect to such excise tax reduction than if no such reduction had been made. Unless the Employee shall have given prior written notice to the Company to effectuate a reduction in the Termination Payments if such a reduction is required, the Company shall reduce or eliminate the Termination Payments by first reducing or eliminating any cash severance benefits, then by reducing or eliminating any accelerated vesting of stock options, then by reducing or eliminating any accelerated vesting of restricted stock, then by reducing or eliminating any other remaining payments or distributions. The preceding provisions of this subsection shall take precedence over the provisions of any other plan, arrangement or agreement governing the Employee's rights and entitlements to any benefits or compensation. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the determination of whether a reduction to the Termination Payments is required, it is possible that Termination Payments to the Employee which will not have been made by the Company (if a reduction to the Termination Payments is made in accordance with the preceding paragraph) should have been made ("Underpayment"). Any such excise tax together with any such interest and penalties, Underpayment shall be referred promptly paid by the Company to as or for the “Excise Tax”), then a calculation shall first be made under which such payments or benefits provided to Executive are reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax (the “4999 Limit”). Parent shall then compare (a) Executive’s Net After-Tax Benefit (as defined below) assuming application benefit of the 4999 Limit with (b) Executive’s Net After-Tax Benefit without application of the 4999 Limit. “Net After-Tax Benefit” shall mean the sum of (i) all payments that Executive receives or is entitled to receive that are contingent on a change in the ownership or effective control of Parent or in the ownership of a substantial portion of the assets of Parent within the meaning of Code section 280G(b)(2), less (ii) the amount of federal, state, local, employment, and Excise Tax (if any) imposed with respect to such paymentsEmployee. In the event (a) is greater than (b), Executive shall receive Payments solely up that a reduction to the 4999 Limit. In Termination Payments is required in accordance with the event preceding paragraph and all or a portion of the Total Payments actually made to the Employee (bafter reduction of the Termination Payments) is greater than (a), then Executive shall be entitled determined to receive all such Payments, and shall be solely liable for any and all Excise Tax related thereto. If a reduction result in the severance and other benefits constituting “parachute payments” is necessary so that no portion imposition of such severance benefits is subject to the excise any tax under Section 4999 of the Code, the reduction Employee shall occur in promptly reimburse the following order: (1) reduction Company for the amount of the severance excess Termination Payments together with interest on such amount (at the same rate as is applied to determine the present value of payments under Section 5(c)(i280G or any successor thereto); (2) cancellation of accelerated vesting of equity awards; and (3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of from the date of grant of Executive’s equity awardsthe reimbursable payment was received by the Employee to the date the same is repaid to the Company."

Limitation on Parachute Payments. (a) If it is determined that Notwithstanding any payment provision to the contrary set forth in the Amended Agreement, or benefit any other plan, arrangement or agreement to the contrary (including without limitation Section 12(e) of the Plan), if any of the payments or benefits provided or to be provided by the Company or its affiliates to Executive or for the Executive’s benefit of Executive (a “Payment”), whether paid or payable or distributed or distributable pursuant to the terms of this the Amended Agreement or otherwiseotherwise (“Covered Payments”) constitute parachute payments (“Parachute Payments”) within the meaning of Section 280G of the Code and would, would but for this Section 14 be subject to the excise tax imposed under Section 4999 of the code (or any successor provision thereto) or any similar tax imposed by Code section 4999 state or local law or any interest or penalties with respect to such excise tax taxes (such excise tax together with any such interest and penaltiescollectively, shall be referred to as the “Excise Tax”), then a calculation the Covered Payments shall first be made under which such payments payable either (i) in full or benefits provided to Executive are (ii) reduced to the minimum extent necessary so to ensure that no portion thereof shall be of the Covered Payments is subject to the Excise Tax (the “4999 Limit”). Parent shall then compare (a) Executive’s Net After-Tax Benefit (as defined below) assuming application Tax, whichever of the 4999 Limit with (b) Executive’s Net After-Tax Benefit without application of the 4999 Limit. “Net After-Tax Benefit” shall mean the sum of foregoing (i) all payments that Executive receives or is entitled to receive that are contingent on a change in the ownership or effective control of Parent or in the ownership of a substantial portion of the assets of Parent within the meaning of Code section 280G(b)(2), less (ii) results in the Executive’s receipt on an after-tax basis of the greatest amount of benefits after taking into account the applicable federal, state, locallocal and foreign income, employmentemployment and excise taxes (including the Excise Tax). (b) The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and Excise Tax where two economically equivalent amounts are subject to reduction by payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (if anyc) imposed Any determination required under this Section 14(c) shall be made in writing in good faith by an accounting firm selected by the Company, which is reasonably acceptable to Executive and whose consent shall not be unreasonably withheld (the “Accountants”), which shall provide detailed supporting calculations to the Company and the Executive as required by the Company or the Executive. The Company and the Executive shall provide the Accountants with respect such information and documents as the Accountants may reasonably request in order to such paymentsmake a determination under this Section 14(c). The Company shall be responsible for all fees and expenses of the Accountants. (d) It is possible that after the determinations and selections made pursuant to this Section 14 the Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 14 (“Overpayment”) or less than the amount provided under this Section 14 (“Underpayment”). (i) In the event that: (aA) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is greater than (b), Executive shall receive Payments solely up established pursuant to the 4999 Limit. In the event (b) is greater than (a)a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then Executive shall be entitled to receive all pay any such Payments, and shall be solely liable for any and all Excise Tax related thereto. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits is subject Overpayment to the excise tax under Section 4999 of the Code, the reduction shall occur in the following order: Company. (1ii) reduction of the severance payments under Section 5(c)(i); (2) cancellation of accelerated vesting of equity awards; and (3) reduction of continued employee benefits. In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that acceleration an Underpayment has occurred or (B) a court of vesting of equity award compensation is competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to be reduced, such acceleration of vesting shall be cancelled in or for the reverse order benefit of the date of grant of Executive’s equity awards.