Common use of Parachute Payment Limitation Clause in Contracts

Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if the Executive is a “disqualified individual” (as defined in Section 280G of the Code), and the severance or change of control payments and benefits described in Paragraph 9, together with any other payments which the Executive has the right to receive from the Company, would constitute a “parachute payment” (as defined in Section 280G of the Code), the payments and benefits provided hereunder shall be reduced (but not below zero) so that the aggregate present value of such payments and benefits received by the Executive from the Company shall be $1.00 less than three times the Executive’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by the Executive shall be subject to the excise tax imposed by Section 4999 of the Code. The determination as to whether any such reduction in the amount of the payments and benefits is necessary shall be made by the Company in good faith and such determination shall be conclusive and binding on the Executive. If a reduced payment is made to the Executive and through error or otherwise that payment, when aggregated with other payments from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times the Executive’s base amount, the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if the Executive Employee is a “disqualified individual” (as defined in Section 280G of the Code), and the severance or change of control Change in Control payments and benefits described in Paragraph 9paragraph 8, together with any other payments which the Executive Employee has the right to receive from the Company, would constitute a “parachute payment” (as defined in Section 280G of the Code), the payments and benefits provided hereunder shall be either (a) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by the Executive Employee from the Company shall be $1.00 less than three times the ExecutiveEmployee’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by the Executive Employee shall be subject to the excise tax imposed by Section 4999 of the Code, or (b) paid in full, whichever produces the better net after-tax result for Employee (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The determination as to whether any such reduction in the amount of the payments and benefits is necessary shall be made by the Company in good faith and such determination shall be conclusive and binding on the ExecutiveEmployee. If a reduced payment is made to the Executive Employee pursuant to clause (a) above and through error or otherwise that payment, when aggregated with other payments from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times the ExecutiveEmployee’s base amount, the Executive Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made.