Common use of Limitation on Severance Payments Clause in Contracts

Limitation on Severance Payments. (a) Notwithstanding anything to the contrary contained in this Agreement, in the event that any Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or otherwise in connection with a Change in Control (“Total Payments”) would be subject to any Excise Tax, then the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code Section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code Section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied by the Base Amount. For this purpose, cash Severance Payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zero). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2). (b) For purposes of this Section 3.03, the determination of whether any portion of the Total Payments would be subject to an Excise Tax will be made by an Accounting Firm selected by the Company and reasonably acceptable to the Executive. For purposes of that determination, the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Accounting Firm in accordance with the principles of Section 280G(d)(3) and (4).

Limitation on Severance Payments. (a) Notwithstanding anything to the contrary contained in this Agreement, in the event that any Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or otherwise in connection with a Change in Control (“Total Payments”) would be subject to any Excise Tax, then the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code Section section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code Section section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied by the Base Amount. For this purpose, cash Severance Payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zero). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code Section section 280G(b)(2). (b) For purposes of this Section 3.03, the determination of whether any portion of the Total Payments would be subject to an Excise Tax will be made by an Accounting Firm selected by the Company and reasonably acceptable to the Executive. For purposes of that determination, the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Accounting Firm in accordance with the principles of Section 280G(d)(3) and (4).

Limitation on Severance Payments. (a) Notwithstanding anything to the contrary contained in this AgreementAgreement to the contrary, in the event that any Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or otherwise in connection with a Change in Control (“Total Payments”) would be subject to any an Excise Tax, then the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code Section section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code Section section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied by the Base Amount. For this purpose, cash Severance Payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zero). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code Section section 280G(b)(2). (b) For purposes of this Section 3.03, the determination of whether any portion of the Total Payments would be subject to an Excise Tax will be made by an Accounting Firm selected by the Company and reasonably acceptable to the Executive. For purposes of that determination, the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Accounting Firm in accordance with the principles of Section Code sections 280G(d)(3) and (4).

Limitation on Severance Payments. (a) Notwithstanding anything to the contrary contained in any provision of this Agreement, if any portion of the severance payments under this Article V or other payment under this Agreement together with any other payments or compensation which Employee has a right to receive from the Corporation or its affiliates (in the event that any Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or otherwise in connection with a Change in Control (aggregate, “Total Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and, but for this Section 5.9, would be subject to any Excise Taxexcise tax imposed by Section 4999 of the Code, then the value of the Total Payments will shall be reduced to the extent necessary so that, within largest amount as will result in no portion of the meaning severance payment being subject to the excise tax imposed by Section 4999 of Code the Code. (b) If a reduction is required pursuant to Section 280G(b)(2)(A)(ii5.9(a), the aggregate Total Payments shall be reduced or eliminated by applying the following principles, in order: (1) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (2) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits included in the Total Payments (on the basis of the relative present value of the payments in the nature of compensation parachute payments). (c) The determinations to (or for the benefit of) the Executive that are contingent on be made with respect to this Section 5.9 shall be made by a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code Section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied certified public accounting firm designated by the Base Amount. For this purpose, cash Severance Payments will Company (which may be reduced first the Corporation’s independent auditors) and reasonably acceptable to the Employee (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zerothe “Accounting Firm”). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of determination by the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2). (b) For purposes of this Section 3.03, the determination of whether any portion of the Total Payments would be subject to an Excise Tax will be made by an Accounting Firm selected by the Company and reasonably acceptable to the Executive. For purposes of that determination, the value of any non-cash benefit noncash benefits or any deferred payment or benefit included in the Total Payments will shall be determined by the Accounting Firm in accordance with the principles of Section Code Sections 280G(d)(3) and (4).

Limitation on Severance Payments. (a) Notwithstanding anything to the contrary contained in this AgreementAgreement to the contrary, in the event that any Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or otherwise in connection with a Change in Control (“"Total Payments”") would be subject to any an Excise Tax, then the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code Section section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change in Control (with a Change in Control for this purpose being defined in terms of a “"change” " described in Code Section section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied by the Base Amount. For this purpose, cash Severance Payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zero). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: : (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “"parachute payment” " within the meaning of Code Section section 280G(b)(2). (b) For purposes of this Section 3.03, the determination of whether any portion of the Total Payments would be subject to an Excise Tax will be made by an Accounting Firm selected by the Company and reasonably acceptable to the Executive. For purposes of that determination, the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Accounting Firm in accordance with the principles of Section Code sections 280G(d)(3) and (4).

Limitation on Severance Payments. (a) Notwithstanding anything any other provision to the contrary contained in this Agreementcontrary, in the event that any Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or otherwise other payments and benefits the Executive is entitled to receive, has received or would receive in connection with a Change “change in Control ownership or control” as defined in Code Section 280G, whether pursuant to this Agreement or otherwise (collectively, the “Total Payments”) would be subject to any Excise Tax, then then, depending on whichever alternative produces the better net after-tax result for the Executive (taking into account any applicable Excise Tax and any other applicable tax), the value of the Total Payments will be either: (i) Be reduced to the extent necessary so that, within the meaning of Code Section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in ownership or control under Code Section 280G(b)(2)(A)(i) or (ii))280G, do not exceed 2.999 multiplied by the Base Amount. For this purpose, cash Severance Payments payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments payments will be reduced next (if necessary, to zero). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2); or (ii) be paid in full. For the avoidance of doubt, this Section 3.03(a) shall reduce the Total Payments otherwise payable to the Executive only if doing so would place the Executive in a better net after-tax economic position as compared to not doing so (taking into account any Excise Taxes payable in respect of such Total Payments). (b) For purposes of this Section 3.03, the determination of whether any portion of the Total Payments would be subject to an Excise Tax will be made by an Accounting Firm selected by the Company and reasonably acceptable to the Executive. For purposes of that determination, the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Accounting Firm in accordance with the principles of Code Section 280G(d)(3) and (4). 2. Effective as of the Effective Date, Section 3.04 is amended to add a new subsection (d) to read as follows:

Limitation on Severance Payments. (a) Notwithstanding anything to the contrary contained in any provision of this Agreement, if any portion of the severance payments under this Article V or other payment under this Agreement together with any other payments or compensation which Employee has a right to receive from the Corporation or its affiliates (in the event that any Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or otherwise in connection with a Change in Control (aggregate, “Total Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and, but for this Section 5.9, would be subject to any Excise Taxexcise tax imposed by Section 4999 of the Code, then the value of the Total Payments will shall be reduced to the extent necessary so that, within largest amount as will result in no portion of the meaning severance payment being subject to the excise tax imposed by Section 4999 of Code the Code. (b) If a reduction is required pursuant to Section 280G(b)(2)(A)(ii5.9(a), the aggregate Total Payments shall be reduced or eliminated by applying the following principles, in order: (1) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (2) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits included in the Total Payments (on the basis of the relative present value of the payments in the nature of compensation parachute payments). (c) The determinations to (or for the benefit of) the Executive that are contingent on be made with respect to this Section 5.9 shall be made by a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code Section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied certified public accounting firm designated by the Base Amount. For this purpose, cash Severance Payments will Corporation (which may be reduced first the Corporation’s independent auditors) and reasonably acceptable to the Employee (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zerothe “Accounting Firm”). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of determination by the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2). (b) For purposes of this Section 3.03, the determination of whether any portion of the Total Payments would be subject to an Excise Tax will be made by an Accounting Firm selected by the Company and reasonably acceptable to the Executive. For purposes of that determination, the value of any non-cash benefit noncash benefits or any deferred payment or benefit included in the Total Payments will shall be determined by the Accounting Firm in accordance with the principles of Section Code Sections 280G(d)(3) and (4).

Limitation on Severance Payments. (a) Notwithstanding anything to the contrary contained in this Agreement, in the event that any Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or otherwise in connection with a Change in Control (“Total Payments”) would be subject to any Excise Tax, then the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code Section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code Section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied by the Base Amount. For this purpose, cash Severance Payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zero). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2). (b) For purposes of this Section 3.03, the determination of whether any portion of the Total Payments would be subject to an Excise Tax will be made by an Accounting Firm selected by the Company and reasonably acceptable to the Executive. For purposes of that determination, the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Accounting Firm in accordance with the principles of Section 280G(d)(3) and (4).. US.115484722.02

Limitation on Severance Payments. (ai) Notwithstanding anything any provision of this Plan, if any portion of the severance payments under this Section V or other payment under this Plan together with any other payments or compensation which a Participant has a right to receive from the contrary contained in this Agreement, Corporation or its affiliates (in the event that any Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or otherwise in connection with a Change in Control (aggregate, “Total Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and, but for this Section 5.2(d), would be subject to any Excise Taxexcise tax imposed by Section 4999 of the Code, then the value of the Total Payments will shall be reduced to the extent necessary so that, within largest amount as will result in no portion of the meaning severance payment being subject to the excise tax imposed by Section 4999 of Code the Code. (ii) If a reduction is required pursuant to Section 280G(b)(2)(A)(ii5.2(d)(i), the aggregate Total Payments shall be reduced or eliminated by applying the following principles, in order: (1) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (2) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits included in the Total Payments (on the basis of the relative present value of the payments in the nature of compensation parachute payments). (iii) The determinations to (or for the benefit ofbe made with respect to this Section 5.2(d) the Executive that are contingent on shall be made by a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code Section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied certified public accounting firm designated by the Base Amount. For this purpose, cash Severance Payments will Corporation (which may be reduced first the Corporation’s independent auditors) and reasonably acceptable to the Participant (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zerothe “Accounting Firm”). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of determination by the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2). (b) For purposes of this Section 3.03, the determination of whether any portion of the Total Payments would be subject to an Excise Tax will be made by an Accounting Firm selected by the Company and reasonably acceptable to the Executive. For purposes of that determination, the value of any non-cash benefit noncash benefits or any deferred payment or benefit included in the Total Payments will shall be determined by the Accounting Firm in accordance with the principles of Section Code Sections 280G(d)(3) and (4).