Common use of Reduction in Compensation to Avoid Excise Tax Clause in Contracts

Reduction in Compensation to Avoid Excise Tax. In the event Executive would become entitled to any amounts payable in connection with a Change of Control (whether or not such amounts are payable pursuant to this Agreement) (the “Severance Payments”), if any of such Severance Payments would otherwise be subject to the excise tax on excess golden parachute payments imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed) (the “Excise Tax”), as determined in accordance with this Section 4(b), but prior to giving effect to any adjustment under this Section 4(b), the following provisions shall apply: (i) For purposes of determining whether any of the Severance Payments would be subject to the Excise Tax and the amount of such Excise Tax: (A) Severance Payments, including any payments or benefits other than those under this Section 4(b) received or to be received by Executive in connection with Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person) (which, together with the Severance Payments, constitute the “Total Payments”), shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of a nationally-recognized public accounting firm mutually acceptable to Executive and the Company such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 28OG(b)(4) of the Code in excess of the base amount within the meaning of Section 28OG(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be deemed to be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 28OG(b)(1) of the Code (after applying Section 4(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally recognized public accounting firm mutually acceptable to Executive and the Company in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) If a reduction in the aggregate amount of Severance Payments Executive otherwise would be entitled to receive by an amount not exceeding 20% of such Severance Payments would result in Executive receiving a greater “Net After-Tax Amount,” as such term is defined below, then such Severance Payments shall be reduced by the amount, not exceeding 20% of such Severance Payments, as will provide to Executive the greatest Net After-Tax Amount, such reduction to be made from such payments under this Agreement or such other of the Severance Payments not yet paid to Executive as Executive shall specify. For this purpose, the term “Net After-Tax Amount” shall mean the net amount of the Severance Payments after deducting any federal, state and local income tax and Excise Tax which would be applicable to such Severance Payments. In the event that the Excise Tax is subsequently determined to differ from the amount taken into account hereunder at the time of termination of employment, adjustments shall be made in accordance with this Section 4(b)(ii) in light of the revised determination.

Reduction in Compensation to Avoid Excise Tax. In the event Executive would become entitled to any amounts payable in connection with a Change of Control (whether or not such amounts are payable pursuant to this Agreement) (the “"Severance Payments”"), if any of such Severance Payments would otherwise be subject to the excise tax on excess golden parachute payments imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed) (the “"Excise Tax”"), as determined in accordance with this Section 4(b3(b), but prior to giving effect to any adjustment under this Section 4(b3(b), the following provisions shall apply: (i) For purposes of determining whether any of the Severance Payments would be subject to the Excise Tax and the amount of such Excise Tax: (A) Severance Payments, including any payments or benefits other than those under this Section 4(b3(b) received or to be received by Executive in connection with Executive’s 's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person) (which, together with the Severance Payments, constitute the “"Total Payments”"), shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of a nationally-recognized public accounting firm mutually acceptable to Executive and the Company such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 28OG(b)(4280G(b)(4) of the Code in excess of the base amount within the meaning of Section 28OG(b)(3280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be deemed to be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 28OG(b)(1280G(b)(1) of the Code (after applying Section 4(b)(i)(A3(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally nationally- recognized public accounting firm mutually acceptable to Executive and the Company in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) If a reduction in the aggregate amount of Severance Payments Executive otherwise would be entitled to receive by an amount not exceeding twenty percent (20% %) of such Severance Payments would result in Executive receiving a greater “"Net After-Tax Amount,” " as such term is defined below, then such Severance Payments shall be reduced by the amount, not exceeding twenty percent (20% %) of such Severance Payments, as will provide to Executive the greatest Net After-Tax Amount, such reduction to be made from such payments under this Agreement or such other of the Severance Payments not yet paid to Executive as Executive shall specify. For this purpose, the term “"Net After-Tax Amount” " shall mean the net amount of the Severance Payments after deducting any federal, state and local income tax and Excise Tax which would be applicable to such Severance Payments. In the event that the Excise Tax is subsequently determined to differ from the amount taken into account hereunder at the time of termination of employment, adjustments shall be made in accordance with this Section 4(b)(ii3(b)(ii) in light of the revised determination.

Reduction in Compensation to Avoid Excise Tax. In the event Executive would become entitled to any amounts payable in connection with a Change of Control (whether or not such amounts are payable pursuant to this Agreement) (the “Severance Payments”), if any of such Severance Payments would otherwise be subject to the excise tax on excess golden parachute payments imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed) (the “Excise Tax”), as determined in accordance with this Section 4(b), but prior to giving effect to any adjustment under this Section 4(b), the following provisions shall apply: (i) For purposes of determining whether any of the Severance Payments would be subject to the Excise Tax and the amount of such Excise Tax: (A) Severance Payments, including the Retention Bonus (the Severance Payments and the Retention Bonus together, the “Severance and Retention Payments”) and any other payments or benefits other than those under this Section 4(b) 4 and Section 5 received or to be received by Executive in connection with a Change in Control or Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person) (which, together with the Severance Payments, constitute the “Total Payments”), shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of a nationally-recognized public accounting firm mutually acceptable to Executive and the Company such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 28OG(b)(4280G(b)(4) of the Code in excess of the base amount within the meaning of Section 28OG(b)(3280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be deemed to be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 28OG(b)(1280G(b)(1) of the Code (after applying Section 4(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally recognized public accounting firm mutually acceptable to Executive and the Company in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) If a reduction in the aggregate amount of the Severance and Retention Payments (to the extent such amounts are determined to be subject to the Excise Tax), that Executive otherwise would be entitled to receive by an amount not exceeding 20% of such Severance and Retention Payments would result in Executive receiving a greater “Net After-Tax Amount,” as such term is defined below, then such Severance and Retention Payments shall be reduced by the an amount, not exceeding 20% of such Severance and Retention Payments, as will provide to Executive the greatest Net After-Tax Amount, such reduction to be made from such payments under this Agreement or such other of the Severance and Retention Payments not yet paid to Executive as Executive shall specify. For this purpose, the term “Net After-Tax Amount” shall mean the net amount of the Severance and Retention Payments (to the extent such amounts are determined to be subject to the Excise Tax) after deducting any federal, state and local income tax and Excise Tax which would be applicable to such Severance and Retention Payments. In the event that the Excise Tax is subsequently determined to differ from the amount taken into account hereunder at the time of termination of employment, adjustments shall be made in accordance with this Section 4(b)(ii) in light of the revised determination.