Common use of Limitations on Certain Payments Clause in Contracts

Limitations on Certain Payments. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise would be an “excess parachute payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the second to last sentence of this Section 3 to be paid or provided will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an excess parachute payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to the Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence will be made at the expense of the Company by a certified accounting firm that is independent from the Company. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 3, the Company will reduce the Executive’s payments and/or benefits, to the extent required, in the following order: (a) the payments due under Section 2(d)(3) (beginning with the payment farthest out in time that would otherwise be paid); (b) the payments due under Section 2(d)(1) (beginning with the payment farthest out in time that would otherwise be paid); (c) the payment due under Section 2(d)(2). The assessment of whether or not such payments or benefits constitute or would include excess parachute payments shall take into account a reasonable compensation analysis of the value of services provided or to be provided by the Executive, including any agreement by the Executive (if applicable) to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable to you that may then be in effect.

Limitations on Certain Payments. (a) Notwithstanding any provision of anything in this Agreement to the contrary, if a Change of Control occurs and it is determined that any amount payment or distribution by the Company to or for the benefit to be of Employee, whether paid or provided under payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be constitute an “excess parachute payment,” within the meaning of Section 280G of the Code, then, if the aggregate present value of such Payments exceeds 2.99 times Employee’s “base amount,” as defined in Section 280G(b)(3) of the Code (the “Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or any successor provision thereto, but for the application benefit of this sentence, then the payments and benefits identified in the second to last sentence of this Section 3 to be paid or provided will Employee shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion such “parachute payments” are equal to 2.99 times the Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Employee determines, based upon the advice of any such payment or benefit, the Accounting Firm (as so reduced, constitutes an excess parachute payment; provided, howeverdefined below), that the foregoing reduction will be made only if and to the extent that without such reduction Employee would result in an increase in the aggregate payment be entitled to receive and benefits to be provided to the Executiveretain, determined on an after-a net after tax basis (taking into account the including, without limitation, any excise tax imposed pursuant to taxes payable under Section 4999 of the Code), or any successor provision theretoan amount which is greater than the amount, any on a net after tax imposed by any comparable provision basis, that the Employee would be entitled to retain upon his receipt of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, Reduced Amount. (b) If the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required made pursuant to the preceding sentence will be made at the expense Section 4(a) results in a reduction of the Company by a certified accounting firm Payments that is independent from would otherwise be paid to Employee except for the Companyapplication of Section 4(a), then the reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of equity-based awards (if applicable); reduction of employee benefits. In the event that any payment or benefit intended acceleration of vesting of equity-based awards is to be provided reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Employee’s equity-based award. (c) All determinations to be made under this Agreement Section 4 shall be made by the Company’s independent public accountants immediately prior to the Change of Control or otherwise is required by another independent public accounting firm mutually selected by the Company and Employee before the date of the Change of Control (the “Accounting Firm”), which firm shall provide its determinations and any supporting calculations both to the Company and Employee within 20 days after the Termination Date. Any such determination by the Accounting Firm shall be reduced binding upon the Company and Employee. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 4 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 34, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm. (e) As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company will reduce which should not have been made under this Section 4 (“Overpayment”) or that additional payments which are not made by the Executive’s payments and/or benefitsCompany under this Section 4 should have been made (“Underpayment”). In the event that there is a final determination by the Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall be treated for all purposes as a loan to Employee, which Employee shall repay to the extent requiredCompany together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or a change in the following order: (a) the payments due under Section 2(d)(3) (beginning with the payment farthest out in time that would otherwise be paid); (b) the payments due under Section 2(d)(1) (beginning with the payment farthest out in time that would otherwise be paid); (c) the payment due under Section 2(d)(2). The assessment of whether or not such payments or benefits constitute or would include excess parachute payments shall take into account a reasonable compensation analysis provisions of the value of services provided Code or regulations pursuant to which an Underpayment arises under this Agreement, any such Underpayment shall be provided promptly paid by the ExecutiveCompany to or for the benefit of Employee, including any agreement by together with interest at the Executive (if applicableapplicable Federal rate provided for in Section 7872(f)(2) to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable to you that may then be in effectof the Code.

Limitations on Certain Payments. (i) Notwithstanding any other provision of this Agreement Agreement, in the event it is determined, based upon the advice of a nationally recognized accounting firm selected by the Company, that all or part of the compensation or benefits paid to Executive in connection with a change of control of the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise Company would be an constitute “excess parachute payment,payments” (within the meaning of Code Section 280G(b)(2)), then the amount of any severance benefits otherwise provided to Executive hereunder and the amount of any other benefits provided to Executive under any other arrangement with the Company or its affiliates will be reduced to the extent necessary so that no such payments shall constitute parachute payments (but not below zero); provided that no such reduction shall be applied if it is determined that, without such reduction, Executive would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount which is greater than would be retained by Executive, on a net after tax basis, after giving effect to such reduction. (ii) If the determination made pursuant to clause (i) of this Section 13(h) results in a reduction of the payments that would otherwise be paid to Executive except for the application of clause (i) of this Section 13(h), then the reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of equity-based awards (if applicable); reduction of employee benefits. In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Executive’s equity-based award. (iii) As a result of the uncertainty in the application of Section 280G of the CodeCode at the time of a determination hereunder, or any successor provision thereto, but for it is possible that payments will be made by the application of this sentence, then the payments and benefits identified in the second to last sentence Company which should not have been made under clause (i) of this Section 3 to be paid 13(h) (“Overpayment”) or provided will be reduced to that additional payments which are not made by the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an excess parachute payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to the Executive, determined on an after-tax basis (taking into account the excise tax imposed Company pursuant to clause (i) of this Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes13(h) should have been made (“Underpayment”). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence will be made at the expense of the Company by a certified accounting firm that is independent from the Company. In the event that there is a final determination by the Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any payment such Overpayment shall be treated for all purposes as a loan to Executive which Executive shall repay to the Company together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or benefit intended a change in the provisions of the Code or regulations pursuant to be provided which an Underpayment arises under this Agreement or otherwise is required to Agreement, any such Underpayment shall be reduced pursuant to this Section 3, promptly paid by the Company will reduce to or for the benefit of Executive’s payments and/or benefits, to together with interest at the extent required, applicable Federal rate provided for in the following order: (aSection 7872(f)(2) the payments due under Section 2(d)(3) (beginning with the payment farthest out in time that would otherwise be paid); (b) the payments due under Section 2(d)(1) (beginning with the payment farthest out in time that would otherwise be paid); (c) the payment due under Section 2(d)(2). The assessment of whether or not such payments or benefits constitute or would include excess parachute payments shall take into account a reasonable compensation analysis of the value of services provided or to be provided by the Executive, including any agreement by the Executive (if applicable) to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable to you that may then be in effectCode.

Limitations on Certain Payments. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise would be an “excess parachute payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the second to last sentence of this Section 3 to be paid or provided will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an excess parachute payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to the Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence will be made at the expense of the Company by a certified accounting firm that is independent from the Company. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 3, the Company will reduce the Executive’s payments and/or benefits, to the extent required, in the following order: (a) the payments due under Section 2(d)(3) (beginning with the payment farthest out in time that would otherwise be paid); (b) the payments due under Section 2(d)(1) (beginning with the payment farthest out in time that would otherwise be paid); (c) the payment due under Section 2(d)(2). The assessment of whether or not such payments or benefits constitute or would include excess parachute payments shall take into account a reasonable compensation analysis of the value of services provided or to be provided by the Executive, including any agreement by the Executive (if applicable) to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable to you that may then be in effect.

Limitations on Certain Payments. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise would be an “"excess parachute payment,” " within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the second to last sentence of this Section 3 to be paid or provided will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an excess parachute payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to the Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence will be made at the expense of the Company by a certified accounting firm that is independent from the Company. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 3, the Company will reduce the Executive’s 's payments and/or benefits, to the extent required, in the following order: (a) the payments due under Section 2(d)(3) (beginning with the payment farthest out in time that would otherwise be paid); (b) the payments due under Section 2(d)(12(d)(l) (beginning with the payment farthest out in time that would otherwise be paid); (c) the payment due under Section 2(d)(2). The assessment of whether or not such payments or benefits constitute or would include excess parachute payments shall take into account a reasonable compensation analysis of the value of services provided or to be provided by the Executive, including any agreement by the Executive (if applicable) to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable to you that may then be in effect.

Limitations on Certain Payments. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise would be an “excess parachute payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the second to last sentence of this Section 3 to be paid or provided will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an excess parachute payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to the Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence will be made at the expense of the Company by a certified accounting firm that is independent from the Company. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 3, the Company will reduce the Executive’s payments and/or benefits, to the extent required, in the following order: (a) the payments due under Section 2(d)(3) (beginning with the payment farthest out in time that would otherwise be paid); (b) the payments due under Section (2(d)(1) (beginning with the payment farthest out in time that would otherwise be paid); (c) the payment due under Section 2(d)(2). The assessment of whether or not such payments or benefits constitute or would include excess parachute payments shall take into account a reasonable compensation analysis of the value of services provided or to be provided by the Executive, including any agreement by the Executive (if applicable) to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable to you that may then be in effect.

Limitations on Certain Payments. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise would be an “"excess parachute payment,” " within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentencesentence , then the payments and benefits identified in the second to last sentence of this Section 3 to be paid or provided will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion port ion of any such payment or benefit, as so reduced, constitutes an excess parachute payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to the Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence will be made at the expense of the Company by a certified accounting firm that is independent from the Company. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 3, the Company will reduce the Executive’s 's payments and/or benefits, to the extent required, in the following order: (a) the payments due under Section 2(d)(3) (beginning with the payment farthest out in time that would otherwise be paid); (b) the payments due under Section 2(d)(1) (beginning with the payment farthest out in time that would otherwise be paid); (c) the payment due under Section 2(d)(2). The assessment of whether or not such payments or benefits constitute or would include excess parachute payments shall take into account a reasonable compensation analysis of the value of services provided or to be provided by the Executive, including any agreement by the Executive (if applicable) to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable to you that may then be in effect.

Limitations on Certain Payments. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise would be an “excess parachute payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits identified in the second to last sentence of this Section 3 4 to be paid or provided will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an excess parachute payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to the Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence will be made at the expense of the Company by a certified accounting firm that is independent from the Company. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 3, the Company will reduce the Executive’s payments and/or benefits, to the extent required, in the following order: (a) the payments due under Section 2(d)(33(d)(3) (beginning with the payment farthest out in time that would otherwise be paid); (b) the payments due under Section 2(d)(13(d)(1) (beginning with the payment farthest out in time that would otherwise be paid); (c) the payment due under Section 2(d)(23(d)(2). The assessment of whether or not such payments or benefits constitute or would include excess parachute payments shall take into account a reasonable compensation analysis of the value of services provided or to be provided by the Executive, including any agreement by the Executive (if applicable) to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable to you that may then be in effect.

Limitations on Certain Payments. Notwithstanding any provision of (a) Anything in this Agreement to the contrarycontrary notwithstanding, if a Change of Control occurs and it is determined that any amount payment or distribution by the Company to or for the benefit to be of Executive, whether paid or provided under payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be constitute an “excess parachute payment,” within the meaning of Section 280G of the Code, then, if the aggregate present value of such Payments exceeds 2.99 times Executive’s “base amount,” as defined in Section 280G(b)(3) of the Code (the “Executive Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to or any successor provision thereto, but for the application benefit of this sentence, then the payments and benefits identified in the second to last sentence of this Section 3 to be paid or provided will Executive shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion such “parachute payments” are equal to 2.99 times the Executive Base Amount (the “Reduced Amount”); provided that such amounts shall not be so reduced if the Executive determines, based upon the advice of any such payment or benefit, the Accounting Firm (as so reduced, constitutes an excess parachute payment; provided, howeverdefined below), that the foregoing reduction will be made only if and to the extent that without such reduction Executive would result in an increase in the aggregate payment be entitled to receive and benefits to be provided to the Executiveretain, determined on an after-a net after tax basis (taking into account the including, without limitation, any excise tax imposed pursuant to taxes payable under Section 4999 of the Code), or any successor provision theretoan amount which is greater than the amount, any on a net after tax imposed by any comparable provision of state lawbasis, and any applicable federal, state and local income and employment taxes). Whether requested by that the Executive or would be entitled to retain upon his receipt of the Company, Reduced Amount. (b) If the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required made pursuant to the preceding sentence will be made at the expense Section 13(a) results in a reduction of the Company by a certified accounting firm Payments that is independent from would otherwise be paid to Executive except for the Companyapplication of Section 13(a), then the reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of equity-based awards (if applicable); reduction of employee benefits. In the event that any payment or benefit intended acceleration of vesting of equity-based awards is to be provided reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Executive’s equity-based award. (c) All determinations to be made under this Agreement Section 13 shall be made by the Company’s independent public accountants immediately prior to the Change of Control or otherwise is required by another independent public accounting firm mutually selected by the Company and Executive before the date of the Change of Control (the “Accounting Firm”), which firm shall provide its determinations and any supporting calculations both to the Company and Executive within 20 days after the Termination Date. Any such determination by the Accounting Firm shall be reduced binding upon the Company and Executive. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 13 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 313, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm. (e) As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company will reduce which should not have been made under this Section 13 (“Overpayment”) or that additional payments which are not made by the Executive’s payments and/or benefitsCompany under this Section 13 should have been made (“Underpayment”). In the event that there is a final determination by the Internal Revenue Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall be treated for all purposes as a loan to Executive which Executive shall repay to the extent requiredCompany together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In the event that there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or a change in the following order: (a) the payments due under Section 2(d)(3) (beginning with the payment farthest out in time that would otherwise be paid); (b) the payments due under Section 2(d)(1) (beginning with the payment farthest out in time that would otherwise be paid); (c) the payment due under Section 2(d)(2). The assessment of whether or not such payments or benefits constitute or would include excess parachute payments shall take into account a reasonable compensation analysis provisions of the value of services provided Code or regulations pursuant to which an Underpayment arises under this Agreement, any such Underpayment shall be provided promptly paid by the Company to or for the benefit of Executive, including any agreement by together with interest at the Executive (if applicableapplicable Federal rate provided for in Section 7872(f)(2) to refrain from performing services pursuant to a covenant not to compete or similar covenant applicable to you that may then be in effectof the Code.