Common use of Section 280G Limitation on Payments Clause in Contracts

Section 280G Limitation on Payments. In the event that the payments and benefits provided for in this Agreement or otherwise payable to Executive constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code (the “Code”) and, but for this Section 5.2, would be subject to the excise tax imposed by Section 4999 of the Code, then: (a) Executive’s severance benefits will be either: (1) paid and delivered in full, or (2) paid and delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive, on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. (b) If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits is subject to the excise tax under Section 4999 of the Code, the reduction shall occur in the following order: (1) reduction of the severance payments under Sections 5.1(a), and (2) reduction of continued employee benefits under Section 5.1(b). Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5.2 will be made in writing by an independent firm (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5.2, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section 5.2 prior to the date payments or benefits would otherwise become payable to Executive under this Agreement. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5.2.

Section 280G Limitation on Payments. In 8.1 If any compensation, payment or distribution by the event that Company to or for the payments and benefits provided for in benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise payable to Executive constitute “parachute payments” within the meaning of otherwise, calculated in a manner consistent with Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) andand the applicable regulations thereunder (the “280G Amounts”), (a) constitutes a “parachute payment” within the meaning of Code Section 280G and (b) but for this Section 5.28, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then: (a) Executive’s severance benefits then the 280G Amounts will be either: either (1x) paid and delivered in full, ; or (2y) paid and delivered as to such lesser extent which that would result in no portion of such severance benefits the 280G Amounts being subject to the excise tax under Section 4999 of the Code, Excise Tax; whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive, the Covered Employee on an after-tax basis, of the greatest amount of severance benefits280G Amounts, notwithstanding that all or some portion of such severance benefits the 280G Amounts may be taxable under Section 4999 of the Code. (b) 8.2 If a reduction of 280G Amounts is made in accordance with this Section 8, the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits is subject reduction will occur, with respect to the excise tax under 280G Amounts considered parachute payments within the meaning of Section 4999 280G of the Code, the reduction shall occur in the following order: (1a) reduction cash payments not subject to Section 409A (as defined below) in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the severance event triggering the Excise Tax will be the first cash payment to be reduced); (b) cash payments under Sections 5.1(asubject to Section 409A in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first cash payment to be reduced); (c) equity award payments and acceleration in the reverse order of date of grant of the equity awards (that is, the vesting of the most recently granted equity awards will be cancelled first); and (2d) reduction non-cash forms of continued employee benefits under Section 5.1(bin reverse chronological order (that is, the benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first benefit to be reduced). In no event will Executive have any discretion with respect to the ordering of payment reductions. 8.3 Unless the Company and Executive the Covered Employee otherwise agree in writing, any determination required under this Section 5.2 will 8 shall be made in writing by an independent a nationally recognized accounting or valuation firm selected by the Company (the “Accounting Firm”). For purposes of determining whether any reduction under this Section 8 shall apply to any 280G Amounts, whose Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination will is to be conclusive made, and binding upon Executive state and local income taxes at the Company for all purposeshighest marginal rates of individual taxation in the state and locality of Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. For purposes of making the calculations required by this Section 5.28, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Any determination by the Accounting Firm shall be conclusive and binding upon the Company and Executive for all purposes. The Company and Executive the Covered Employee will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section 5.2 prior to the date payments or benefits would otherwise become payable to Executive under this Agreement8. The Company will bear the costs and make all costs payments for the Firm may reasonably incur Firm’s services in connection with any calculations contemplated by this Section 5.28. 8.4 If, notwithstanding any reduction described in this Section 8, the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of the payment of benefits as described above, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of the payment equal to the “Repayment Amount.” The “Repayment Amount” with respect to the payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise Tax.

Section 280G Limitation on Payments. (i) In the event that all or any portion of the benefits provided under this Agreement, either alone or together with other payments and benefits provided for in this Agreement that the Executive receives or otherwise payable is then entitled to Executive receive from the Company or any member of the Affiliated Group, would constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code (Code, the “Code”) and, but for Company shall reduce such payments and benefits provided to the Executive under this Section 5.2, would Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code; but only if, then: (a) Executive’s severance benefits will be either: (1) paid and delivered in full, or (2) paid and delivered as to such lesser extent which would result in no portion by reason of such severance benefits being subject reduction, the net after-tax benefit to the excise Executive shall exceed the net after-tax benefit if such reduction were not made. “Net after-tax benefit” for these purposes shall mean (A) the total amount payable to the Executive under this Agreement (and all other payments and benefits which the Executive receives or is then entitled to receive from the Company or any member of the Affiliated Group) that would constitute a “parachute payment” within the meaning of Section 4999 280G of the Code, whichever less (B) the amount of federal income taxes payable with respect to the foregoing calculated at the Executive’s applicable marginal income tax rate for each year in which the foregoing shall be paid to the Executive (based upon the rate in effect for such year as set forth in the Code at the time of the foregoing amountspayment under this Agreement), taking into account less (C) the applicable federal, state amount of excise taxes imposed with respect to the payments and local income taxes and the excise tax imposed benefits described in (A) above by Section 4999, results in the receipt by Executive, on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. (b) If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits is subject to the excise tax under Section 4999 of the Code, the reduction shall occur in the following order: (1) reduction of the severance payments under Sections 5.1(a), and (2) reduction of continued employee benefits under Section 5.1(b). Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5.2 will be made in writing by an independent firm (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5.2, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination amount of any reduction made under this Section 5.2 9(k) in the payment to which the Executive is entitled under this Agreement is hereinafter referred to as the “Relinquished Amount.” (ii) All determinations required to be made under this Section 9(k), including whether and when a Relinquished Amount shall be imposed and the amount of such Relinquished Amount, shall be made by the Company’s independent auditing firm used immediately prior to the date payments or benefits would otherwise become payable Change of Control (the “Accounting Firm”), which shall provide detailed supporting calculations both to Executive under this Agreementthe Company and the Executive. The Company will bear shall provide any and all costs information, records and documents relating to Executive’s compensation and benefits paid or payable by the Company as may be reasonably requested by the Accounting Firm may reasonably incur in connection with any calculations contemplated its determination of the Relinquished Amount. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. (iii) Notwithstanding anything herein to the contrary, expressed or implied, the Company’s obligations to the Executive pursuant to this Section 5.29(k) shall be limited to providing to the Executive payments and benefits in accordance with the determinations of the Accounting Firm. The Company shall not be liable for any inaccuracies in the determination of the Relinquished Amount by such Accounting Firm.

Section 280G Limitation on Payments. In the event that the payments and benefits provided for in this Agreement or otherwise payable to Executive constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code (the “Code”) and, but for this Section 5.28.3, would be subject to the excise tax imposed by Section 4999 of the Code, then: (a) Executive’s severance benefits will be either: (1) paid and delivered in full, or (2) paid and delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive, on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. (b) If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits is subject to the excise tax under Section 4999 of the Code, the reduction shall occur in the following order: (1) reduction of the severance payments under Sections 5.1(a), and (2) reduction of continued employee benefits under Section 5.1(b). Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5.2 8.3 will be made in writing by an independent firm (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5.28.3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section 5.2 8.3 prior to the date payments or benefits would otherwise become payable to Executive under this Agreement. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5.28.3.

Section 280G Limitation on Payments. In If the event that the payments and benefits provided for in this Agreement or otherwise payable to Executive constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code (the “Code”) and, but for this Section 5.2, would be subject to the excise tax imposed by Section 4999 of the Code, then: or any similar or successor tax, (the “Excise Tax”) would apply absent this Section 9.2, to any payments, benefits and/or amounts received by the Executive as severance benefits or otherwise, including, without limitation, any amounts received or deemed received, within the meaning of any provision of the Code, by the Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding grants or awards to the Executive under any of the Company’s equity incentive plans or agreements (collectively, the “Total Payments”), then the Executive’s payments and benefits under this Agreement shall be either (a) Executive’s severance benefits will be either: (1) paid and delivered in full, or (2b) paid and delivered as to such lesser extent which as would result in no portion of such severance payments and benefits being subject to the excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the all applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive, the Executive on an after-tax basis, of the greatest amount of severance benefits. If the Total Payments are to be reduced in accordance with the preceding sentence, notwithstanding that all or some portion of any such severance benefits may be taxable under Section 4999 of the Code. (b) If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits is subject to the excise tax under Section 4999 of the Code, the reduction shall occur be applied in the following order: (1i) reduction payments that are payable in cash the full amount of the severance which are treated as parachute payments under Sections 5.1(aTreasury Regulation Section 1.280G-1, Q&A 24(a) will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24) will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with amounts that are payable last reduced first, will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24) will next be reduced; and (2v) reduction of continued employee all other non-cash benefits under Section 5.1(b)not otherwise described in the foregoing clauses (ii) or (iv) will next be reduced pro-rata. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5.2 will section shall be made in writing by an independent firm public accountant selected by the Company (the “FirmAccountants”), whose determination will shall be conclusive and binding upon the Executive and the Company for all purposes. An independent public accountant retained by the Company prior to the Closing shall act as the Accountants for purposes of this Agreement only if approved by the Company's successor. For purposes of making the calculations required by this Section 5.2section, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section 5.2 prior to the date payments or benefits would otherwise become payable to Executive under this Agreementsection. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5.2section.

Section 280G Limitation on Payments. In If the event that the payments and benefits provided for in this Agreement or otherwise payable to Executive constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code (the “Code”) and, but for this Section 5.2, would be subject to the excise tax imposed by Section 4999 of the Code, then: or any similar or successor tax, (the “Excise Tax”) would apply absent this Section 9.2, to any payments, benefits and/or amounts received by the Executive as severance benefits or otherwise, including, without limitation, any amounts received or deemed received, within the meaning of any provision of the Code, by the Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding grants or awards to the Executive under any of the Company's equity incentive plans or agreements (collectively, the “Total Payments”), then the Executive's payments and benefits under this Agreement shall be either (a) Executive’s severance benefits will be either: (1) paid and delivered in full, or (2b) paid and delivered as to such lesser extent which as would result in no portion of such severance payments and benefits being subject to the excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the all applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive, the Executive on an after-tax basis, of the greatest amount of severance benefits. If the Total Payments are to be reduced in accordance with the preceding sentence, notwithstanding that all or some portion of any such severance benefits may be taxable under Section 4999 of the Code. (b) If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits is subject to the excise tax under Section 4999 of the Code, the reduction shall occur be applied in the following order: (1i) reduction payments that are payable in cash the full amount of the severance which are treated as parachute payments under Sections 5.1(aTreasury Regulation Section 1.280G-1, Q&A 24(a) will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity the full amount of which are treated as parachute payments under Treasury Regulation Section 1.2800-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.2800-1, Q&A 24) will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.2800-1, Q&A 24, with amounts that are payable last reduced first, will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.2800-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.2800-1, Q&A 24) will next be reduced; and (2v) reduction of continued employee all other non-cash benefits under Section 5.1(b)not otherwise described in the foregoing clauses (ii) or (iv) will next be reduced pro-rata. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5.2 will section shall be made in writing by an independent firm public accountant selected by the Company (the “Firm”"Accountants"), whose determination will shall be conclusive and binding upon the Executive and the Company for all purposes. An independent public accountant retained by the Company prior to the Closing shall act as the Accountants for purposes of this Agreement only if approved by the Company's successor. For purposes of making the calculations required by this Section 5.2section, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G 2800 and 4999 of the Code. The Company and the Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section 5.2 prior to the date payments or benefits would otherwise become payable to Executive under this Agreementsection. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5.2section.

Section 280G Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the payments and benefits provided for in contrary, if any payment or benefit to Executive pursuant to this Agreement or otherwise payable to Executive (a “Payment”) (a) would constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code and (the “Code”b) and, but for this Section 5.2sentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then: (a) Executive’s severance benefits then such payment will either be either: (1) paid and delivered in full, full or (2) paid and delivered as to such lesser extent which as would result in no portion of such severance benefits Payment being subject to the excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, after taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive, Executive on an after-tax basis, basis of the greatest amount of severance benefitslargest payment, notwithstanding that all or some portion of such severance benefits the Payment may be taxable under Section 4999 of the Code. (b) If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits is subject to the excise tax under Section 4999 of Excise Tax. Any reduction in payments and/or benefits pursuant to the Code, the reduction shall foregoing will occur in the following order: (1i) cash payments, (ii) cancellation of accelerated vesting of equity awards, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G- Q & A 24(c) being reduced before equity that is so subject, and (iii) reduction of the severance payments under Sections 5.1(a), and (2) reduction of continued employee other benefits under Section 5.1(b)payable to Executive. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5.2 will 5.6 shall be made in writing by an the Company’s independent public accountants or such other accounting firm determined by the Company in good faith (the “FirmAccountants”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5.25.6, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section 5.2 prior 5.6. The Accountants shall deliver to the date payments or benefits would otherwise become payable Company and Executive sufficient documentation for Executive to Executive under this Agreementrely on it for purpose of filing Executive’s tax returns. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5.25.6.

Section 280G Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the payments and benefits provided for in contrary, if any payment or distribution to Employee pursuant to this Agreement or otherwise payable to Executive (“Payment”) would (a) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code and (the “Code”b) and, but for this Section 5.2sentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then: (a) Executive’s severance benefits then such Payment will either be either: (1) paid and delivered in full, full or (2) paid and delivered as to such lesser extent which as would result in no portion of such severance benefits Payment being subject to the excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, after taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive, Employee on an after-tax basis, basis of the greatest amount of severance benefitslargest payment, notwithstanding that all or some portion of such severance benefits the Payment may be taxable under Section 4999 of the Code. (b) If a . The accounting firm engaged by the Company for general audit purposes as of the date prior to the effective date of the applicable change in control, or such other Person as determined in good faith by the Company, will perform the foregoing calculations and the Company will bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. Any good faith determinations of the accounting firm made pursuant to this Section 5.4 will be final, binding and conclusive upon all parties. Any reduction in the severance and other payments and/or benefits constituting “parachute payments” is necessary so that no portion of such severance benefits is subject pursuant to the excise tax under Section 4999 of the Code, the reduction shall foregoing will occur in the following order: order (1i) reduction of the severance payments under Sections 5.1(a)cash payments; (ii) cancellation of accelerated vesting of equity awards other than stock options, if any; (iii) cancellation of accelerated vesting of stock options, and (2iv) reduction of continued employee other benefits under Section 5.1(b). Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5.2 will be made in writing by an independent firm (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5.2, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section 5.2 prior to the date payments or benefits would otherwise become payable to Executive under this Agreement. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5.2Employee.