Common use of Maximum Payment Clause in Contracts

Maximum Payment. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change of Control or other change of control (whether or not such amounts are payable pursuant to this Agreement) (the “Total Payments”), if any of such Total Payments are subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments; provided, however that in the event the aggregate value of the Total Payments exceeds three times the Executive’s “base amount,” as defined in Section 280G(b)(3) of the Code, (the “Parachute Threshold”) by less than 10%, one or more of the Total Payments shall be reduced so that the aggregate value of the Total Payments is $1.00 less than the Parachute Threshold. The Company shall reduce or eliminate the Total Payments by first reducing or eliminating the portion of the Total Payments which are payable in cash and then by reducing or eliminating Total Payments which are not payable in cash, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Change of Control. The preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. For the avoidance of doubt, in no event shall the Company be required to pay to Executive any amount under this Section 5 with respect to any taxes or interest that may arise as a result of Section 409A (as defined herein). Any Gross-Up Payment, as determined pursuant to this Section 5 shall be paid by the Company to the Executive within five days of receipt of the determination of liability for an Excise Tax, but in no event later than the end of the taxable year following the taxable year in which the related taxes are remitted by the Executive.

Maximum Payment. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change of Control or other change of control (whether or not such amounts are payable pursuant to this Agreement) (the “Total Payments”), if any of such Total Payments are subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments; provided, however that in the event the aggregate value of the Total Payments exceeds three times the Executive’s “base amount,” as defined in Section 280G(b)(3) of the Code, (the “Parachute Threshold”) by less than 10%, one or more of the Total Payments shall be reduced so that the KV: Executive: 8 aggregate value of the Total Payments is $1.00 less than the Parachute Threshold. The Company shall reduce or eliminate the Total Payments by first reducing or eliminating the portion of the Total Payments which are payable in cash and then by reducing or eliminating Total Payments which are not payable in cash, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Change of Control. The preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. For the avoidance of doubt, in no event shall the Company be required to pay to Executive any amount under this Section 5 with respect to any taxes or interest that may arise as a result of Section 409A (as defined herein). Any Gross-Up Payment, as determined pursuant to this Section 5 shall be paid by the Company to the Executive within five days of receipt of the determination of liability for an Excise Tax, but in no event later than the end of the taxable year following the taxable year in which the related taxes are remitted by the Executive.