Common use of Section 280G Limitation Clause in Contracts

Section 280G Limitation. If the value of any payment or other benefit the Executive would receive from the Company or otherwise in connection with a Change in Control (the “Benefit”) would (i) constitute a “parachute payment” within the meaning of Code Section 280G, and (ii) but for this sentence, be subject to the excise tax imposed by Code Section 4999 (the “Excise Tax”), then such Benefit shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either: (i) the largest portion of the Benefit that would result in no portion of the Benefit being subject to the Excise Tax; or (ii) the largest portion, up to and including the total, of the Benefit, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an after-tax basis, of the greater amount of the Benefit notwithstanding that all or some portion of the Benefit may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Benefit equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the Benefit occurs) or required pursuant to Code Section 409A: reduction of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Benefit is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Benefit, it shall furnish the Executive and the Company (at the Company’s expense) with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company, except as set forth below.

Section 280G Limitation. If a. Notwithstanding any other provision to the value of contrary, if any payment payments or other benefit the benefits Executive would receive from the Company pursuant to this Agreement or otherwise in connection with a Change in Control (collectively, the “BenefitPayments”) would would, either separately or in the aggregate, (i) constitute a “parachute paymentpayments” within the meaning of Code Section 280GG of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then such Benefit shall the Payments will be reduced equal to the Reduced AmountAmount (defined below). The “Reduced Amount” shall will be either: either (i1) the entire amount of the Payments, or (2) an amount equal to the largest portion of the Benefit Payments that would result in no portion of any of the Benefit Payments (after reduction) being subject to the Excise Tax; or (ii) the largest portion, up to and including the total, of the Benefit, whichever amount, amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the Executive’s receipt, on an after-tax basis, of the greater greatest amount of the Benefit notwithstanding that all or some portion of the Benefit may be subject to the Excise TaxPayments. If a reduction in payments or benefits constituting “parachute payments” the Payments is necessary to be made so that the Benefit amount of the Payments equals the Reduced Amount, reduction shall occur the Payments will be paid only to the extent permitted under the Reduced Amount alternative; provided, that in the following order unless event the Executive elects Reduced Amount is paid, the cash payments set forth in writing a different order (provided, however, that such election Section 9 shall be subject to reduced as required by the Company’s approval if made on or after operation of this Section 25. b. The Company shall engage the date on which the event that triggers the Benefit occurs) or required pursuant to Code Section 409A: reduction of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. The accounting firm engaged by the Company for general audit purposes as of the day at least 20 business days prior to the effective date of the Change in Control shall to perform any calculation necessary to determine the foregoing calculationsamount, if any, payable to Executive pursuant to Section 9, as limited by this Section 25. If the accounting firm so engaged by the Company is also serving as accountant or auditor for the individual, entity or group effecting that will control the Company following the Change in Control, the Company shall may appoint a nationally recognized accounting firm other than the accounting firm engaged by the Company for general audit purposes to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. . c. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive and the Company within fifteen (15) calendar 20 days after the date on which the Executive’s right such accounting firm has been engaged to a Benefit is triggered (if requested at that time by the Executive make such determinations or the Company) or within such other time period as requested agreed to by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Benefit, it shall furnish the Executive Company and the Company (at the Company’s expense) with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such BenefitExecutive. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. d. Notwithstanding the foregoing, in determining the reduction, if any, that shall occur as a result of this Section 25, the amounts payable or benefits to be provided to Executive shall be reduced such that the economic loss to Executive as a result of the Excise Tax elimination is minimized. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. e. In the event that following the payment of any Payments pursuant to Section 9, as reduced, if applicable, as required by the operation of Section 25(a)-(d), the Internal Revenue Service (the “IRS”) determines that Officer is liable for the Excise Tax as a result of the receipt of such Payments or Reduced Amount, as applicable, then Officer shall be obligated to pay back to the Company, except within 30 days after final IRS determination, an amount of the Payments or Reduced Amount, as set forth belowapplicable, equal to the “Repayment Amount.” The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to the Company so that the Officer’s net proceeds with respect to the Payments or Reduced Amount, as applicable, (after taking into account the payment of the Excise Tax imposed on such Payments or Reduced Amount, as applicable) shall be maximized. Notwithstanding the foregoing, the Repayment Amount shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on the Payments or Reduced Amount. If the Excise Tax is not eliminated pursuant to this paragraph, Officer shall pay the Excise Tax.

Section 280G Limitation. If the value of any payment or other benefit the Executive would receive from the Company or otherwise in connection with a Change in Control or Change in Control Event (the “Benefit”) would (i) constitute a “parachute payment” within the meaning of Code Section 280GG of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then such Benefit shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either: (i) the largest portion of the Benefit that would result in no portion of the Benefit being subject to the Excise Tax; or (ii) the largest portion, up to and including the total, of the Benefit, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an after-tax basis, of the greater amount of the Benefit notwithstanding that all or some portion of the Benefit may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Benefit equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the Benefit occurs) or required pursuant to Code Section 409A: ): reduction of cash payments; cancellation of accelerated vesting of stock awards; and reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in ControlControl or Change in Control Event, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Benefit is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Benefit, it shall furnish the Executive and the Company (at the Company’s expense) with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Executive and the Company, except as set forth below. If, notwithstanding any reduction described in this Section 8, the Internal Revenue Service (the “IRS”) determines that the Executive is liable for the Excise Tax as a result of the receipt of the payment of benefits as described above, then the Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that the 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 the 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 the 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, the Executive shall pay the Excise Tax. Notwithstanding any other provision of this Section 8, if (i) there is a reduction in the payment of benefits as described in this Section, (ii) the IRS later determines that the Executive is liable for the Excise Tax, the payment of which would result in the maximization of the Executive’s net after-tax proceeds (calculated as if the Executive’s benefits had not previously been reduced), and (iii) the Executive pays the Excise Tax, then the Company shall pay to the Executive those benefits which were reduced pursuant to this Section contemporaneously or as soon as administratively possible after the Executive pays the Excise Tax so that the Executive’s net after-tax proceeds with respect to the payment of benefits is maximized.