Common use of Payment Following a Change in Control Clause in Contracts

Payment Following a Change in Control. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with or arising out of, the Executive’s employment with the Employer or a change in ownership or effective control of the Employer or a substantial portion of its assets (a “Payment”), would be nondeductible by the Employer for Federal income tax purposes under the rules set forth in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), as in effect on the Effective Date (the “Effective Date Section 280G Rules”), then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as “Agreement Payments”) shall be reduced to the Reduced Amount. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments and that would not cause any Payment to be nondeductible by the Employer under the Effective Date Section 280G Rules. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment under the Effective Date Section 280G Rules would nevertheless be nondeductible by the Employer under the Effective Date Section 280G Rules, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Employer under the Effective Date Section 280G Rules. For purposes of this Section 12.7(a), present value shall be determined in accordance with Section 280G(d)(4) of the Code and the Treasury Regulations promulgated thereunder, under the Effective Date Section 280G Rules. The Executive shall determine which and how much of the Payments shall be eliminated or reduced consistent with the requirements of this Section 12.7(a), provided that, if the Executive does not make such determination within ten business days of the receipt of the calculations made by the Accounting Firm (as defined below), the Employer shall elect which and how much of the Payments shall be eliminated or reduced consistent with the requirements of this Section 12.7(a) and shall notify the Executive promptly of such election. Within five business days thereafter, or at such later time as such amounts otherwise would be payable under this Agreement, the Employer shall pay to or distribute to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement.

Payment Following a Change in Control. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Employer to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with or arising out of, the Executive’s employment with the Employer or a change in ownership or effective control of the Employer or a substantial portion of its assets (a “Payment”), would be nondeductible by the Employer for Federal income tax purposes under the rules set forth in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), as in effect on the Effective Date (the “Effective Date Section 280G Rules”), then the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as “Agreement Payments”) shall be reduced to the Reduced Amount. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments and that would not cause any Payment to be nondeductible by the Employer under the Effective Date Section 280G Rules. Anything to the contrary notwithstanding, if the Reduced Amount is zero and it is determined further that any Payment which is not an Agreement Payment under the Effective Date Section 280G Rules would nevertheless be nondeductible by the Employer under the Effective Date Section 280G Rules, then the aggregate present value of Payments which are not Agreement Payments shall also be reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be nondeductible by the Employer under the Effective Date Section 280G Rules. For purposes of this Section 12.7(a), present value shall be determined in accordance with Section 280G(d)(4) of the Code and the Treasury Regulations promulgated thereunder, under the Effective Date Section 280G Rules. The Executive shall determine which and how much of the Payments shall be eliminated or reduced consistent with the requirements of this Section 12.7(a), provided that, if the Executive does not make such determination within ten business days of the receipt of the calculations made by the Accounting Firm (as defined below)Firm, the Employer shall elect which and how much of the Payments shall be eliminated or reduced consistent with the requirements of this Section 12.7(a) and shall notify the Executive promptly of such election. Within five business days thereafter, or at such later time as such amounts otherwise would be payable under this Agreement, the Employer shall pay to or distribute to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement.