Common use of Potential Cut-Back Clause in Contracts

Potential Cut-Back. (a) In the event it is determined (pursuant to Section 1.3) or finally determined (as defined in Section 1.4(d)) that any payment, distribution, transfer, or benefit by the Company, or a direct or indirect subsidiary or affiliate of the Company, to or for the benefit of the Executive or the Executive’s dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, the Executive’s employment with the Company or a change in ownership or effective control of the Company or a substantial portion of its assets, but determined without regard to any additional payments required under this Exhibit D) (each a “Payment” and collectively the “Payments”) is subject to the excise tax imposed by Section 4999 of the Code, and any successor provision or any comparable provision of state or local income tax law (collectively, “Section 4999”), or any interest, penalty or addition to tax is incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest, penalty, and addition to tax, hereinafter collectively referred to as the “Excise Tax”), then the Payments shall be reduced (but not below zero) so that the maximum amount of the Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Payments to be subject to the Excise Tax (the “Parachute Payment Threshold”); provided, however, that in the event that the aggregate amount of the Payments exceeds an amount equal to one hundred and ten percent (110%) of the Parachute Payment Threshold, the Payments shall not be so reduced, and the Executive shall be entitled to a Gross-Up Payment in accordance with Section 1.2 below. If the amount of the Payments is less than or equal to one hundred and ten percent (110%) of the Parachute Payment Threshold, the Payments shall be so reduced, and unless the Executive shall have given prior written notice to the Company to effectuate a reduction in the Payments if such a reduction is required, the Company shall reduce the Payments by first reducing or eliminating any cash severance benefits, then by reducing or eliminating any accelerated vesting of stock options, then by reducing or eliminating any accelerated vesting of restricted stock, then by reducing or eliminating any other remaining Payments.

Potential Cut-Back. (a) In the event it is determined (pursuant to Section 1.3) or finally determined (as defined in Section 1.4(d)) that any payment, distribution, transfer, or benefit by the Company, or a direct or indirect subsidiary or affiliate of the Company, to or for the benefit of the Executive or the Executive’s dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, the Executive’s employment with the Company or a change in ownership or effective control of the Company or a substantial portion of its assets, but determined without regard to any additional payments required under this Exhibit D) (each a “Payment” and collectively the “Payments”) is subject to the excise tax imposed by Section 4999 of the Code, and any successor provision or any comparable provision of state or local income tax law (collectively, “Section 4999”), or any interest, penalty or addition to tax is incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest, penalty, and addition to tax, hereinafter collectively referred to as the “Excise Tax”), then the Payments shall be reduced (but not below zero) so that the maximum amount of the Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Payments to be subject to the Excise Tax (the “Parachute Payment Threshold”); provided, however, that in the event that the aggregate amount of the Payments exceeds an amount equal to one hundred and ten percent (110%) of the Parachute Payment Threshold, the Payments shall not be so reduced, and the Executive shall be entitled to a Gross-Up Payment in accordance with Section 1.2 below. If the amount of the Payments is less than or equal to one hundred and ten percent (110%) of the Parachute Payment Threshold, the Payments shall be so reduced, and unless the Executive shall have given prior written notice to the Company to effectuate a reduction in the Payments if such a reduction is required, the Company shall reduce the Payments by first reducing or eliminating any cash severance benefits, then by reducing or eliminating any accelerated vesting of stock options, then by reducing or eliminating any accelerated vesting of restricted stock, then by reducing or eliminating any other remaining Payments. Any written notice by the Executive pursuant to the immediately preceding sentence shall be given effect only if it would not constitute an acceleration, deferral or other change in payment terms that is inconsistent with the requirements of (or the requirements for exemption from ) Section 409A of the Code.

Potential Cut-Back. (a) In Notwithstanding anything contained in this Agreement to the event it is determined (pursuant contrary, to Section 1.3) or finally determined (as defined in Section 1.4(d)) the extent that any payment, distribution, transfer, payment or benefit by the Company, or a direct or indirect subsidiary or affiliate distribution of the Company, any type to or for the benefit Executive by the Company or any of the Executive its affiliates, whether paid or the Executive’s dependents, heirs payable or beneficiaries (whether such payment, distribution, transfer, benefit distributed or other event occurs distributable pursuant to the terms of this Agreement or otherwise in connection with(including, without limitation, any accelerated vesting of stock options or arising out ofrestricted stock granted by the Company pursuant to this Agreement or otherwise) (collectively, the Executive’s employment with the Company or a change in ownership or effective control of the Company or a substantial portion of its assets, but determined without regard to any additional payments required under this Exhibit D) (each a “Payment” and collectively the “Total Payments”) is or will be subject to the excise tax imposed by under Section 4999 of the CodeCode (which reference includes, and for purposes of this Agreement, any similar successor provision to Section 4999) or any comparable provision of state interest or local income tax law (collectively, “Section 4999”), or any interest, penalty or addition to tax is penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest, penalty, interest and addition to tax, hereinafter penalties collectively referred to as the “Excise Tax”), then the Total Payments shall be reduced (but not below zero) so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to be subject to the Excise Tax (the “Parachute Payment Threshold”)Tax; provided, however, that in the event that the aggregate amount of by which the Total Payments would be reduced pursuant to this sentence exceeds an amount equal to one hundred and ten percent forty thousand dollars (110%) of the Parachute Payment Threshold$40,000), the Total Payments shall not be so reduced, and the Executive shall be entitled to a Gross-Up Payment in accordance with Section 1.2 5.2 below. If the amount of by which the Total Payments would be reduced pursuant to this Section 5.1(a) is less than or equal to one hundred and ten percent forty thousand dollars (110%) of the Parachute Payment Threshold$40,000), the Total Payments shall be so reduced, and unless the Executive shall have given prior written notice to the Company to effectuate a reduction in the Total Payments if such a reduction is required, the Company shall reduce the Total Payments by first reducing or eliminating any cash severance benefits, then by reducing or eliminating any accelerated vesting of stock options, then by reducing or eliminating any accelerated vesting of restricted stock, then by reducing or eliminating any other remaining Total Payments.