Common use of Section 280G Cutback Clause in Contracts

Section 280G Cutback. The Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Code section 4999. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or in connection with the Executive’s termination of employment or contingent upon a Change in Control pursuant to any plan or arrangement or other agreement with the Company or any affiliate (collectively, the “Payments”) would be subject to the excise tax imposed by Code section 4999, as determined by the Company, then the Payments shall be reduced to the extent necessary to prevent any portion of the Payments from becoming nondeductible by the Company under Code section 280G or subject to the excise tax imposed under Code section 4999, but only if, by reason of that reduction, the net after-tax benefit received by the Executive exceeds the net after-tax benefit the Executive would receive if no reduction was made. For this purpose, “net after-tax benefit” means (i) the total of all Payments that would constitute “excess parachute payments” within the meaning of Code section 280G, less (ii) the amount of all federal, state, and local income taxes payable with respect to the Payments calculated at the maximum marginal income tax rate for each year in which the Payments shall be paid to the Executive (based on the rate in effect for that year as set forth in the Code as in effect at the time of the first payment of the Payments), less (iii) the amount of excise taxes imposed on the Payments described in clause (i) above by Code section 4999. If, pursuant to this Section 9(g), Payments are to be reduced, the Company shall determine which Payments shall be reduced in a manner so as to avoid the imposition of additional taxes under Code section 409A.

Section 280G Cutback. The Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Code section Section 4999. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or in connection with the Executive’s termination of employment or contingent upon a Change in Control pursuant to any plan or arrangement or other agreement with the Company or any affiliate (collectively, the “Payments”) would be subject to the excise tax imposed by Code section Section 4999, as determined by the Company, then the Payments shall be reduced to the extent necessary to prevent any portion of the Payments from becoming nondeductible by the Company under Code section Section 280G or subject to the excise tax imposed under Code section Section 4999, but only if, by reason of that reduction, the net after-tax benefit received by the Executive exceeds the net after-tax benefit the Executive would receive if no reduction was made. For this purpose, “net after-tax benefit” means (i) the total of all Payments that would constitute “excess parachute payments” within the meaning of Code section Section 280G, less (ii) the amount of all federal, state, and local income taxes payable with respect to the Payments calculated at the maximum marginal income tax rate for each year in which the Payments shall be paid to the Executive (based on the rate in effect for that year as set forth in the Code as in effect at the time of the first payment of the Payments), less (iii) the amount of excise taxes imposed on the Payments described in clause (i) above by Code section Section 4999. If, pursuant to this Section 9(g)12, Payments are to be reduced, the Company shall determine which Payments shall be reduced in a manner so as to avoid the imposition of additional taxes under Code section Section 409A.

Section 280G Cutback. The Executive shall bear all expense ofExcept as provided in Section 5(c) hereof, and be solely responsible for, all federal, state, local or foreign taxes due with respect to notwithstanding any payment received under other provision of this Agreement, including, without limitation, any excise tax imposed by Code section 4999. Notwithstanding anything Agreement to the contrary in this Agreementcontrary, in the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to the terms of this Agreement or in connection any other plan, arrangement or agreement with the Executive’s termination Company, any "person" (as defined in Section 13(d) of employment or contingent upon the Act) whose actions result in a Change in Control pursuant to or any plan or arrangement or other agreement person affiliated with the Company or any affiliate such person) (collectivelyall such payments and benefits, the “being hereinafter called "Total Payments”") would not be subject to the excise tax imposed by Code section 4999, as determined deductible (in whole or part) by the Company, then an affiliate or person making such payment or providing such benefit as a result of section 280G of the Payments shall be reduced Internal Revenue Code of 1986, as amended ("the Code"), then, to the extent necessary to prevent any make such portion of the Total Payments from becoming nondeductible deductible (and after taking into account any reduction in the Total Payments provided by the Company under Code reason of section 280G of the Code in such other plan, arrangement or subject agreement), (A) the cash portion of the Total Payments provided in this Section 5 shall first be reduced (if necessary, to the excise tax imposed zero), and (B) all other non-cash Total Payments under Code section 4999this Section 5 shall next be reduced (if necessary, but only if, by reason of that reduction, the net after-tax benefit received by the Executive exceeds the net after-tax benefit the Executive would receive if no reduction was madeto zero). For purposes of this purposelimitation, “net after-tax benefit” means (i) no portion of the total Total Payments the receipt or enjoyment of all which the Executive shall have effectively waived in writing prior to the Date of Termination shall be taken into account, (ii) no portion of the Total Payments that would shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute “excess a "parachute payments” payment" within the meaning of Code section 280G280G(b)(2) of the Code, less including by reason of section 280G(b)(4)(A) of the Code, (iii) those Total Payments provided under this Section 5 shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred to in clause (ii); and (iv) the amount value of all federal, state, and local income taxes payable with respect to any non-cash benefit or any deferred payment or benefit included in the Payments calculated at the maximum marginal income tax rate for each year in which the Total Payments shall be paid to determined by the Executive Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (based on the rate in effect for that year as set forth in the Code as in effect at the time 4) of the first payment of the Payments), less (iii) the amount of excise taxes imposed on the Payments described in clause (i) above by Code section 4999. If, pursuant to this Section 9(g), Payments are to be reduced, the Company shall determine which Payments shall be reduced in a manner so as to avoid the imposition of additional taxes under Code section 409A.Code.

Section 280G Cutback. The Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Code section Section 4999. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or in connection with the Executive’s termination of employment or contingent upon a Change in Control pursuant to any plan or arrangement or other agreement with the Company or any affiliate (collectively, the “Payments”) would be subject to the excise tax imposed by Code section Section 4999, as determined by the Company, then the Payments shall be reduced to the extent necessary to prevent any portion of the Payments from becoming nondeductible by the Company under Code section Section 280G or subject to the excise tax imposed under Code section Section 4999, but only if, by reason of that reduction, the net after-tax benefit received by the Executive exceeds the net after-tax benefit the Executive would receive if no reduction was made. For this purpose, “net after-tax benefit” means (i) the total of all Payments that would constitute “excess parachute payments” within the meaning of Code section Section 280G, less (ii) the amount of all federal, state, and local income taxes payable with respect to the Payments calculated at the maximum marginal income tax rate for each year in which the Payments shall be paid to the Executive (based on the rate in effect for that year as set forth in the Code as in effect at the time of the first payment of the Payments), less (iii) the amount of excise taxes imposed on the Payments described in clause (i) above by Code section Section 4999. If, pursuant to this Section 9(g), Payments are to be reduced, the Company shall determine which Payments shall be reduced in a manner so as to avoid the imposition of additional taxes under Code section Section 409A.