Common use of Section 280G Matters Clause in Contracts

Section 280G Matters. In the event that any payment, accelerated vesting or other benefit payable to Executive under this Agreement together with any other benefits received by Executive under any other Agreement would constitute "parachute payments" within the meaning of Section 280G of the Code (“Parachute Payments”), Executive will be entitled to receive either (i) the full amount of the Parachute Payments, or (ii) the maximum amount that may be provided to Executive without resulting in any portion of such Parachute Payments being subject to the excise tax imposed by Section 4999 of the Code, whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local taxes and the excise tax under Section 4999 of the Code, results in the receipt by Executive, on an after-tax basis, of the greatest portion of the Parachute Payments. The repayment and/or reduction of payments or benefits which would be Parachute Payments (each a "Payment") contemplated by the preceding sentence shall be implemented by determining the Parachute Payment Ratio (as defined below) for each Payment and then reducing the Payments in order beginning with the Payments with the highest Parachute Payment Ratio. For Payments with the same Parachute Payment Ratio, such Payments shall be reduced based on the time of payment of such Payments, with amounts having later payment dates being reduced first. For Payments with the same Parachute Payment Ratio and the same time of payment, such Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing Payments with a lower Parachute Payment Ratio. Any such repayment or reduction will in all events comply with 409A. For purposes of the foregoing, “Parachute Payment Ratio” shall mean a fraction, the numerator of which is the value of the applicable Payment for purposes of Section 280G of the Code and the denominator of which is the intrinsic value of such Payment.

Section 280G Matters. In the event that any paymentpayments, accelerated vesting or other benefit benefits payable to Executive under this Agreement together or otherwise, calculated in a manner consistent with any other benefits received by Executive under any other Agreement Section 280G of the Code, would constitute "parachute payments" within the meaning of Section 280G of the Code (“Parachute Payments”), Executive will the Parachute Payments shall be entitled to receive either (i) reduced so that the full maximum amount of the Parachute Payments, or Payments (iiafter reduction) shall be one dollar ($1.00) less than the maximum amount that may be provided to Executive without resulting in any portion of such would cause the Parachute Payments being to be subject to the excise tax imposed by under Section 4999 of the Code, whichever Code (the “Excise Tax”); provided that the Parachute Payments shall only be reduced to the extent the after-tax value of clauses (i) and (ii)amounts received by Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of such reduction, after taking into account applicable federal, state, and local taxes and the excise tax under Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary, reduction shall occur in the following order, and in all events such reduction shall occur in accordance with the requirements of Section 4999 409A of the Code, results in the receipt by Executive, on an after-tax basis, of the greatest portion of the Parachute Payments. The repayment and/or : (i) reduction of payments cash payments; (ii) cancellation of accelerated vesting of equity or equity- linked awards; (iii) reduction of employee benefits. Payments, accelerated vesting or benefits which would be Parachute Payments (each a "Payment") contemplated by the preceding sentence shall be implemented by determining the Parachute Payment Ratio (as defined below) for each Payment and then reducing the Payments in order beginning with the Payments with the highest Parachute Payment Ratio. For Payments with the same Parachute Payment Ratio, such Payments shall be reduced based on or cancelled (as applicable), such reduction or cancellation shall occur in reverse chronological order with the time of payment of such Payments, with amounts having later payment dates payments to be paid furthest in the future being reduced firstfirst and with acceleration of vesting being cancelled in the reverse order of the date of grant. For Notwithstanding anything to the contrary set forth herein, Executive may not elect the order in which the reduction in Executive’s Parachute Payments will occur, and no such reduction or elimination shall apply, to the extent that such election accelerates or defers the timing of a payment or benefit in a manner that causes the payment or benefit to be subject to the additional tax pursuant to Section 409A of the Code. Any determinations and calculations required under this Section 5(k) shall be made by an independent public accounting firm engaged by the Company. The Company shall bear all expenses with respect to the same 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 Executive and the Company no later than fifteen (15) calendar days after the date on which Executive’s right to a Parachute Payment Ratio is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the same time of payment, such Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing Payments with a lower Parachute Payment Ratio. Any such repayment or reduction will in all events comply with 409A. For purposes of the foregoing, “Parachute Payment Ratio” shall mean a fraction, the numerator of which is the value of the applicable Payment for purposes of Section 280G of the Code and the denominator of which is the intrinsic value of such PaymentCompany.

Section 280G Matters. In the event that any payment, accelerated vesting or other benefit payable to Executive under this Agreement together with any other benefits received by Executive under any other Agreement would constitute "“parachute payments" ” within the meaning of Section 280G of the Internal Revenue Code (the “Code”) (“Parachute Payments”), the following rules shall apply: If at such time the Company is not an entity whose stock is readily tradable on an established securities market (and the Company is otherwise eligible to use the exception in Section 280G(b)(5)(A)(ii)) and if the Executive agrees to waive the right to receive and/or repay any Parachute Payment as required by applicable regulations under Section 280G(b)(5) of the Code (a “280G Waiver”), the Company shall seek to obtain stockholder approval in accordance with the terms of Section 280G(b)(5)(A)(ii) and the regulations thereunder. If at such time either Section 280G(b)(5)(A) is not available for the Company or the Executive does not provide a 280G Waiver, then Executive will be entitled to receive either (i) the full amount of the Parachute Payments, or (ii) the maximum amount that may be provided to Executive without resulting in any portion of such Parachute Payments being subject to the excise tax imposed by Section 4999 of the Code, whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local taxes and the excise tax under Section 4999 of the Code, results in the receipt by Executive, on an after-tax basis, of the greatest portion of the Parachute Payments. The repayment and/or reduction of payments or benefits which would be Parachute Payments (each a "“Payment"”) contemplated by the preceding sentence shall be implemented by determining the Parachute Payment Ratio (as defined below) for each Payment and then reducing the Payments in order beginning with the Payments with the highest Parachute Payment Ratio. For Payments with the same Parachute Payment Ratio, such Payments shall be reduced based on the time of payment of such Payments, with amounts having later payment dates being reduced first. For Payments with the same Parachute Payment Ratio and the same time of payment, such Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing Payments with a lower Parachute Payment Ratio. Any such repayment or reduction will in all events comply with 409A. For purposes of the foregoing, “Parachute Payment Ratio” shall mean a fraction, the numerator of which is the value of the applicable Payment for purposes of Section 280G of the Code and the denominator of which is the intrinsic value of such Payment.Parachute

Section 280G Matters. In the event that any payment, accelerated vesting or other benefit payable to Executive under this Agreement together with any other benefits received by Executive under any other Agreement would constitute "parachute payments" within the meaning of Section 280G of the Code (“Parachute Payments”), Executive will be entitled to receive either (i) the full amount of the Parachute Payments, or (ii) the maximum amount that may be provided to Executive without resulting in any portion of such Parachute Payments being subject to the excise tax imposed by Section 4999 of the Code, whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local taxes and the excise tax under Section 4999 of the Code, results in the receipt by Executive, on an after-tax basis, of the greatest portion of the Parachute Payments. The repayment and/or reduction of payments or benefits which would be Parachute Payments (each each, a "Payment") contemplated by the preceding sentence shall be implemented by determining the Parachute Payment Ratio (as defined below) for each Payment and then reducing the Payments in order beginning with the Payments with the highest Parachute Payment Ratio. For Payments with the same Parachute Payment Ratio, such Payments shall be reduced based on the time of payment of such Payments, with amounts having later payment dates being reduced first. For Payments with the same Parachute Payment Ratio and the same time of payment, such Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing Payments with a lower Parachute Payment Ratio. Any such repayment or reduction will in all events comply with 409A. For purposes of the foregoing, “Parachute Payment Ratio” shall mean a fraction, the numerator of which is the value of the applicable Payment for purposes of Section 280G of the Code and the denominator of which is the intrinsic value of such Payment.

Section 280G Matters. In the event that any paymentpayments, accelerated vesting or other benefit benefits payable to Executive under this Agreement together or otherwise, calculated in a manner consistent with any other benefits received by Executive under any other Agreement Section 280G of the Code, would constitute "parachute payments" within the meaning of Section 280G of the Code (“Parachute Payments”), Executive will the Parachute Payments shall be entitled to receive either (i) reduced so that the full maximum amount of the Parachute Payments, or Payments (iiafter reduction) shall be one dollar ($1.00) less than the maximum amount that may be provided to Executive without resulting in any portion of such would cause the Parachute Payments being to be subject to the excise tax imposed by under Section 4999 of the Code, whichever Code (the “Excise Tax”); provided that the Parachute Payments shall only be reduced to the extent the after-tax value of clauses (i) and (ii)amounts received by Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of such reduction, after taking into account applicable federal, state, and local taxes and the excise tax under Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary, reduction shall occur in the following order, and in all events such reduction shall occur in accordance with the requirements of Section 4999 409A of the Code, results in the receipt by Executive, on an after-tax basis, of the greatest portion of the Parachute Payments. The repayment and/or : (i) reduction of payments cash payments; (ii) cancellation of accelerated vesting of equity or equity-linked awards; (iii) reduction of employee benefits. Payments, accelerated vesting or benefits which would be Parachute Payments (each a "Payment") contemplated by the preceding sentence shall be implemented by determining the Parachute Payment Ratio (as defined below) for each Payment and then reducing the Payments in order beginning with the Payments with the highest Parachute Payment Ratio. For Payments with the same Parachute Payment Ratio, such Payments shall be reduced based on or cancelled (as applicable), such reduction or cancellation shall occur in reverse chronological order with the time of payment of such Payments, with amounts having later payment dates payments to be paid furthest in the future being reduced firstfirst and with acceleration of vesting being cancelled in the reverse order of the date of grant. For Notwithstanding anything to the contrary set forth herein, Executive may not elect the order in which the reduction in Executive’s Parachute Payments will occur, and no such reduction or elimination shall apply, to the extent that such election accelerates or defers the timing of a payment or benefit in a manner that causes the payment or benefit to be subject to the additional tax pursuant to Section 409A of the Code. Any determinations and calculations required under this Section 5(k) shall be made by an independent public accounting firm engaged by the Company. The Company shall bear all expenses with respect to the same 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 Executive and the Company no later than fifteen (15) calendar days after the date on which Executive’s right to a Parachute Payment Ratio is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the same time of payment, such Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing Payments with a lower Parachute Payment Ratio. Any such repayment or reduction will in all events comply with 409A. For purposes of the foregoing, “Parachute Payment Ratio” shall mean a fraction, the numerator of which is the value of the applicable Payment for purposes of Section 280G of the Code and the denominator of which is the intrinsic value of such PaymentCompany.

Section 280G Matters. In the event that any payment, accelerated vesting or other benefit payable to Executive under this Agreement together with any other benefits received by Executive under any other Agreement would constitute "parachute payments" within the meaning of Section 280G of the Code (“Parachute Payments”), Executive will be entitled to receive either (i) the full amount of the Parachute Payments, or (ii) the maximum amount that may be provided to Executive without resulting in any portion of such Parachute Payments being subject to the excise tax imposed by Section 4999 of the Code, whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local taxes and the excise tax under Section 4999 of the Code, results in the receipt by Executive, on an after-tax basis, of the greatest portion of the Parachute Payments. The repayment and/or reduction of payments or benefits which would be Parachute Payments (each a "Payment") contemplated by the preceding sentence shall be implemented by determining the Parachute Payment Ratio (as defined below) for each Payment and then reducing the Payments in order beginning with the Payments with the highest Parachute Payment Ratio. For Payments with the same Parachute Payment Ratio, such Payments shall be reduced based on the time of payment of such Payments, with amounts having later payment dates being reduced first. For Payments with the same Parachute Payment Ratio and the same time of payment, such Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing Payments with a lower Parachute Payment Ratio. Any such repayment or reduction will in all events comply with Section 409A. For purposes of the foregoing, “Parachute Payment Ratio” shall mean a fraction, the numerator of which is the value of the applicable Payment for purposes of Section 280G of the Code and the denominator of which is the intrinsic value of such Payment.