Common use of Limitations on Change of Control Compensation Clause in Contracts

Limitations on Change of Control Compensation. In the event that the lump-sum payment payable to Employee under Section 7.5 hereof ("Severance Benefits"), or any other payments or benefits received or to be received by Employee from the Company (whether payable pursuant to the terms of this Agreement, or any other plan, agreement or arrangement with the Company or any corporation affiliated with the Company within the meaning of Section 1504 of the Code, in the opinion of tax counsel selected by the Company acceptable to Employee, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Employee by the Company (or an Affiliate) and includable in Employee's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control (as hereinafter defined) of the Company occurred ("Base Amount"), such Severance Benefits shall be reduced to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Employee from the Company (or an Affiliate) that are deemed "parachute payments" is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (i) Employee shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 7.7 or (ii) in the opinion of such tax counsel, the Severance Benefits (in their full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for the services actually rendered, within the meaning of Section 280G(b)(4) of the Code and such payments are deductible by the Company. The Base Amount shall include every type and form of compensation includable in Employee's gross income in respect of his employment by the Company (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G(b) of the Code. For purposes of this Section 7.7, a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Company's independent auditors in accordance with the principles of Section 280G of the Code. Employee shall have the right to request that the Company obtain a ruling from the Internal Revenue Service ("IRS") as to whether any or all payments or benefits determined by such tax counsel are, in the view of the IRS, "parachute payments" under Section 280G. If a ruling is sought pursuant to Employee's request, no Severance Benefits payable under this Agreement in excess of the Section 280G limitations shall be made to Employee until after fifteen (15) days from the date of such ruling, however, Severance Benefits shall continue to be paid during the time up to the amount of that limitation. For purposes of this Section 7.7, Employee and the Company shall agree to be bound by the IRS's ruling as to whether payments constitute "parachute payments" under Section 280G. If the IRS declines, for any reason, to provide the ruling requested, the tax counsel's opinion provided with respect to what payments or benefits constitute "parachute payments" shall control and the period during which the Severance Benefits may be deferred shall be extended to a date fifteen (15) days from the date of the IRS's notice indicating that no ruling would be forthcoming. In the event that Section 280G, or any successor statute is repealed, this Section 7.7 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agree that, upon issuance of such final regulations, this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modification shall not be unreasonably withheld.

Limitations on Change of Control Compensation. In the --------------------------------------------- event that the lump-sum payment payable to Employee under Section 7.5 3.5 hereof (the "Severance Liquidation Event Benefits"), or any other payments or benefits received or to be received by Employee from the Company (whether payable pursuant to the terms of this Agreement, or any other plan, agreement or arrangement with the Company or any corporation affiliated with the Company within the meaning of Section 1504 of the Code, in the opinion of tax counsel selected by the Company acceptable to Employee, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Employee by the Company (or an Affiliateaffiliate) and includable in Employee's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control (as hereinafter defined) of the Company occurred ("Base Amount"), such Severance Liquidation Event Benefits shall be reduced to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Employee from the Company (or an Affiliateaffiliate) that are deemed "parachute payments" is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Liquidation Event Benefits shall not be reduced if (i) Employee shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 7.7 3.5 or (ii) in the opinion of such tax counsel, the Severance Liquidation Event Benefits (in their full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for the services actually rendered, within the meaning of Section 280G(b)(4) of the Code and such payments are deductible by the Company. The Base Amount shall include every type and form of compensation includable in Employee's gross income in respect of his employment by the Company (or an Affiliateaffiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G(b) of the Code. For purposes of this Section 7.73.5, a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Internal Code of 1986, as amended (the Code"), and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Company's independent auditors in accordance with the principles of Section 280G of the Code. Employee shall have the right to request that the Company obtain a ruling from the Internal Revenue Service ("IRS") as to whether any or all payments or benefits determined by such tax counsel are, in the view of the IRS, "parachute payments" under Section 280G. If a ruling is sought pursuant to Employee's request, no Severance Liquidation Event Benefits payable under this Agreement in excess of the Section 280G limitations shall be made to Employee until after fifteen (15) days from the date of such ruling, however, Severance Liquidation Event Benefits shall continue to be paid during the time up to the amount of that limitation. For purposes of this Section 7.73.5, Employee and the Company shall agree to be bound by the IRS's ruling as to whether payments constitute "parachute payments" under Section 280G. If the IRS declines, for any reason, to provide the ruling requested, the tax counsel's opinion provided with respect to what payments or benefits constitute "parachute payments" shall control and the period during which the Severance Liquidation Event Benefits may be deferred shall be extended to a date fifteen (15) days from the date of the IRS's notice indicating that no ruling would be forthcoming. In the event that Section 280G, or any successor statute is repealed, this Section 7.7 3.5(e) shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agree that, upon issuance of such final regulations, this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modification shall not be unreasonably withheld.

Limitations on Change of Control Compensation. In the event that the lump-sum payment payable to Employee under Section 7.5 hereof ("Severance Benefits"), or any other payments or benefits received or to be received by Employee from the Company (whether payable pursuant to the terms of this Agreement, or any other plan, agreement or arrangement with the Company or any corporation affiliated with the Company within the meaning of Section 1504 of the Code, in the opinion of tax counsel selected by the Company acceptable to Employee, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Employee by the Company (or an Affiliate) and includable in Employee's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control (as hereinafter defined) of the Company occurred ("Base Amount"), such Severance Benefits shall be reduced to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Employee from the Company (or an Affiliate) that are deemed "parachute payments" is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (i) Employee shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 7.7 or (ii) in the opinion of such tax counsel, the Severance Benefits (in their full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for the services actually rendered, within the meaning of Section 280G(b)(4) of the Code and such payments are deductible by the Company. The Base Amount shall include every type and form of compensation includable in Employee's gross income in respect of his employment by the Company (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G(b) of the Code. For purposes of this Section 7.7, a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Company's independent auditors in accordance with the principles of Section 280G of the Code. Employee shall have the right to request that the Company obtain a ruling from the Internal Revenue Service ("IRS") as to whether any or all payments or benefits determined by such tax counsel are, in the view of the IRS, "parachute payments" under Section 280G. If a ruling is sought pursuant to Employee's request, no Severance Benefits payable under this Agreement in excess of the Section 280G limitations shall be made to Employee until after fifteen (15) days from the date of such ruling, however, Severance Benefits shall continue to be paid during the time up to the amount of that limitation. For purposes of this Section 7.7, Employee and the Company shall agree to be bound by the IRS's ruling as to whether payments constitute "parachute payments" under Section 280G. If the IRS declines, for any reason, to provide the ruling requested, the tax counsel's opinion provided with respect to what payments or benefits constitute "parachute payments" shall control and the period during which the Severance Benefits may be deferred shall be extended to a date fifteen (15) days from the date of the IRS's notice indicating that no ruling would be forthcoming. In the event that Section 280G, or any successor statute is repealed, this Section 7.7 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agree that, upon issuance of such final regulations, this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modification shall not be unreasonably withheld.a

Limitations on Change of Control Compensation. In the event that the lump-sum payment payable to Employee under Section 7.5 hereof ("Severance Benefits"), or Benefits"),or any other payments or benefits received or to be received by Employee from the Company (whether payable pursuant to the terms of this Agreement, or any other plan, agreement or arrangement arrangements with the Company or any corporation affiliated with the Company within the meaning of Section 1504 of the Code, in the opinion of tax counsel selected by the Company acceptable to Employee, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code and the present value of such "parachute payments" equals or exceeds three times the average of the annual compensation payable to Employee by the Company (or an Affiliate) and includable in Employee's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control (as hereinafter defined) of the Company occurred (( "Base Amount"), such Severance Benefits shall be reduced to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by Employee from the Company (or an Affiliate) that are deemed "parachute payments" is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (i) Employee shall have effectively waived his receipt or of enjoyment of any such payment or benefit which triggered the applicability of this Section 7.7 or (ii) in the opinion of such tax counsel, the Severance Benefits (in their full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for the services actually rendered, within the meaning of Section 280G(b)(4) of the Code and such payments are deductible by the Company. The Base Amount shall include every type and form of compensation includable in Employee's gross income in respect of his employment by the Company (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G(b) of the Code. For purposes of this Section 7.7, a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefit or any deferred cash payment shall be determined by the Company's independent auditors in accordance with the principles of Section 280G of the Code. Employee shall have the right to request that the Company obtain a ruling from the Internal Revenue Service ("IRS") as to whether any or all payments or benefits determined by such tax counsel are, in the view of the IRS, "parachute payments" under Section 280G. If a ruling is sought pursuant to Employee's request, no Severance Benefits payable under this Agreement in excess of the Section 280G limitations shall be made to Employee until after fifteen (15) days from the date of such ruling, however, Severance Benefits shall continue to be paid during the time up to the amount of that limitation. For purposes of this Section 7.7, Employee and the Company shall agree to be bound by the IRS's ruling as to whether payments constitute "parachute payments" under Section 280G. If the IRS declines, for any reason, to provide the ruling requested, the tax counsel's opinion provided with respect to what payments or benefits constitute "parachute payments" shall control and the period during which the Severance Benefits may be deferred shall be extended to a date fifteen (15) days from the date of the IRS's notice indicating that no ruling would be forthcoming. In the event that Section 280G, or any successor statute is repealed, this Section 7.7 shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agree that, upon issuance of such final regulations, this Agreement may be modified as in good faith deemed necessary in light of the provisions of such regulations to achieve the purposes of this Agreement, and that consent to such modification shall not be unreasonably withheld.