Common use of Section 280G Cutback Clause in Contracts

Section 280G Cutback. Notwithstanding anything in this Agreement to the contrary, if any payments or benefits (including without limitation, any accelerated vesting of equity awards) Executive would receive pursuant to this Agreement or otherwise would constitute a “parachute payment” within the meaning of Section 280G of the Code (each, a “Payment” and collectively, the “Payments”), the Payments shall be reduced by the minimum possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” All determinations required to be made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm designated by the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company and you. Any determination by the Accounting Firm shall be binding upon you and the Company. If a reduction in any Payments is required under this Section 6, the reduction will occur in the following order: first, by reduction of cash payments; second, by cancellation of accelerated vesting of equity awards; and third, by reduction of other benefits payable to Executive, in each case, in reverse chronological order, beginning with payments or benefits that are to be paid latest. If, at the time of a transaction giving rise to Payments that could constitute “parachute payments,” the stock of the Company is not readily tradable on an established securities market or otherwise and the Company determines that the exemption described in Section 280G(b)(5) of the Code would apply to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Code, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such that no Payments would constitute “excess parachute payments.”

Section 280G Cutback. Notwithstanding anything Anything in this Agreement to the contrarycontrary notwithstanding, if in the event it shall be determined that any payments payment or benefits (including without limitationdistribution by the Company or its successor to or for the benefit of Executive, any accelerated vesting of equity awards) Executive would receive whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “Excise Tax”), then if the aggregate of all Payments that would be subject to the Excise Tax, reduced by all Federal, state and local taxes applicable thereto, including the Excise Tax is less than the amount Executive would receive, after all such applicable taxes, if Executive received Payments equal to an amount which is $1.00 less than three times the Executive's “base amount”, as defined in and determined under Section 280G of the Code, then, such Payments shall be reduced or eliminated to the extent necessary so that the aggregate Payments received by Executive will not be subject to the Excise Tax. If a reduction in the Payments is necessary, reduction shall occur in the following order: first, a reduction of cash payments not attributable to equity awards which vest in an accelerated basis; second, a reduction in any other cash amount payable to Executive; third, the reduction of any employee benefit valued as a “parachute payment” within the meaning of (as defined in Section 280G of the Code (each, a “Payment” Code); and collectivelyfourth, the “Payments”)cancellation of accelerated vesting of stock awards. If acceleration of vesting of stock award compensation is to be reduced, the Payments such acceleration of vesting shall be reduced by cancelled in the minimum possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” reverse order of the date of grant of Executive's stock awards. All determinations required to be made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required 3.3 and the assumptions to be utilized in arriving at such determination, determinations shall be made by a nationally recognized registered public accounting firm designated by Executive and reasonably acceptable to the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company All fees and you. Any determination by expenses of the Accounting Firm shall be binding upon you and the Company. If a reduction in any Payments is required under this Section 6, the reduction will occur in the following order: first, borne solely by reduction of cash payments; second, by cancellation of accelerated vesting of equity awards; and third, by reduction of other benefits payable to Executive, in each case, in reverse chronological order, beginning with payments or benefits that are to be paid latest. If, at the time of a transaction giving rise to Payments that could constitute “parachute payments,” the stock of the Company is not readily tradable on an established securities market or otherwise and the Company determines that the exemption described in Section 280G(b)(5) of the Code would apply to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Code, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such that no Payments would constitute “excess parachute paymentsits successor.”

Section 280G Cutback. Notwithstanding anything Anything in this Agreement to the contrarycontrary notwithstanding, if in the event it shall be determined that any payments payment or benefits (including without limitationdistribution by the Company or its successor to or for the benefit of Executive, any accelerated vesting of equity awards) Executive would receive whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “Excise Tax”), then if the aggregate of all Payments that would be subject to the Excise Tax, reduced by all Federal, state and local taxes applicable thereto, including the Excise Tax is less than the amount Executive would receive, after all such applicable taxes, if Executive received Payments equal to an amount which is $1.00 less than three times the Executive's “base amount”, as defined in and determined under Section 280G of the Code, then, such Payments shall be reduced or eliminated to the extent necessary so that the aggregate Payments received by Executive will not be subject to the Excise Tax. If a reduction in the Payments is necessary, reduction shall occur in the following order: first, a reduction of cash payments not attributable to equity awards which vest in an accelerated basis; second, a reduction in any other cash amount payable to Executive; third, the reduction of any employee benefit valued as a “parachute payment” within the meaning of (as defined in Section 280G of the Code (each, a “Payment” Code); and collectivelyfourth, the “Payments”)cancellation of accelerated vesting of stock awards. If acceleration of vesting of stock award compensation is to be reduced, the Payments such acceleration of vesting shall be reduced by cancelled in the minimum possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” reverse order of the date of grant of Executive's stock awards. All determinations required to be made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required 3.3 and the assumptions to be utilized in arriving at such determination, determinations shall be made by a nationally recognized registered public accounting firm designated by Executive and reasonably acceptable to the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company All fees and you. Any determination by expenses of the Accounting Firm shall be binding upon you and borne solely by the CompanyCompany or its successor. If 4. Miscellaneous 4.1 Statements about the Company or Executive. Except as may be required to comply with a reduction in any Payments is required under this Section 6, the reduction will occur in the following order: first, by reduction of cash payments; second, by cancellation of accelerated vesting of equity awards; and third, by reduction of other benefits payable to Executive, in each case, in reverse chronological court order, beginning with payments lawful subpoena or benefits that are to be paid latest. Ifgovernmental request for information, at the time of a transaction giving rise to Payments that could constitute “parachute payments,” the stock of the Company is not readily tradable on an established securities market or otherwise Executive and the Company determines shall refrain, both during and after Executive’s employment, from publishing any oral or written statements about the other that the exemption described in Section 280G(b)(5) of the Code would apply to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Codeare disparaging, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such slanderous, libelous, or defamatory, or that no Payments would constitute “excess parachute payments.”disclose private or confidential information about their business affairs. 4.2

Section 280G Cutback. Notwithstanding anything Anything in this Agreement to the contrarycontrary notwithstanding, if in the event it shall be determined that any payments payment or benefits (including without limitationdistribution by the Company or its successor to or for the benefit of Executive, any accelerated vesting of equity awards) Executive would receive whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “Excise Tax”), then if the aggregate of all Payments that would be subject to the Excise Tax, reduced by all Federal, state and local taxes applicable thereto, including the Excise Tax is less than the amount Executive would receive, after all such applicable taxes, if Executive received Payments equal to an amount which is $1.00 less than three times the Executive’s “base amount”, as defined in and determined under Section 280G of the Code, then, such Payments shall be reduced or eliminated to the extent necessary so that the aggregate Payments received by Executive will not be subject to the Excise Tax. If a reduction in the Payments is necessary, reduction shall occur in the following order: first, a reduction of cash payments not attributable to equity awards which vest in an accelerated basis; second, a reduction in any other cash amount payable to Executive; third, the reduction of any employee benefit valued as a “parachute payment” within the meaning of (as defined in Section 280G of the Code (each, a “Payment” Code); and collectivelyfourth, the “Payments”)cancellation of accelerated vesting of stock awards. If acceleration of vesting of stock award compensation is to be reduced, the Payments such acceleration of vesting shall be reduced by cancelled in the minimum possible amount necessary such that no amounts payable to you shall constitute a “parachute payment.” reverse order of the date of grant of Executive’s stock awards. All determinations required to be made under this Section 6, including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required 3.3 and the assumptions to be utilized in arriving at such determination, determinations shall be made by a nationally recognized registered public accounting firm designated by Executive and reasonably acceptable to the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company All fees and you. Any determination by expenses of the Accounting Firm shall be binding upon you and the Company. If a reduction in any Payments is required under this Section 6, the reduction will occur in the following order: first, borne solely by reduction of cash payments; second, by cancellation of accelerated vesting of equity awards; and third, by reduction of other benefits payable to Executive, in each case, in reverse chronological order, beginning with payments or benefits that are to be paid latest. If, at the time of a transaction giving rise to Payments that could constitute “parachute payments,” the stock of the Company is not readily tradable on an established securities market or otherwise and the Company determines that the exemption described in Section 280G(b)(5) of the Code would apply to the Payments if the requisite shareholder approval is obtained in accordance with the terms and conditions of Section 280G of the Code, the Company shall use commercially reasonable efforts to seek the requisite shareholder approval of the Payments such that no Payments would constitute “excess parachute paymentsits successor.”