Common use of Section 280G Treatment Clause in Contracts

Section 280G Treatment. (a) In the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the severance of the Executive’s service with the Company, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to any excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash payments under Section 6.4 shall first be reduced, and the non-cash payments under Section 6.4 shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm (the “Auditor”) which was, immediately prior to the Change in Control, the Company’s independent auditor, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Section 280G Treatment. (a) In the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the severance of the Executive’s 's service with the Company, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “"Total Payments”") would be subject (in whole or part), to any excise tax imposed under Section 4999 of the Code (the “"Excise Tax”"), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash payments under Section 6.4 shall first be reduced, and the non-cash payments under Section 6.4 shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise TaxTax . (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “"payment” " within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“"Tax Counsel”") reasonably acceptable to the Executive and selected by the accounting firm (the “"Auditor”") which was, immediately prior to the Change in Control, the Company’s 's independent auditor, does not constitute a “"parachute payment” " within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Section 280G Treatment. (a) In To the event extent that any payment of the payments to which the Executive is entitled to pursuant to Section 3.2 or benefit received otherwise under an equity award agreement or to be received by other agreement between the Company and the Executive (including any payment or benefit received in connection with a Change in Control or the severance of the Executive’s service with the Companycollectively, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to any excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash payments under Section 6.4 shall first be reduced, and the non-cash payments under Section 6.4 shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm (the “Auditor”) which was, immediately prior to the Change in Control, the Company’s independent auditor, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) 280G of the Code, and but for this Section 3.2(f) andwould be subject to the excise tax imposed by Section 4999 of the Code, the Payments will be payable either (i) in calculating the Excise Taxfull, or (ii) as to such lesser amount which would result in no portion of such Total Payments shall be taken being subject to excise tax under Section 4999 of the Code; whichever of the foregoing amounts, taking into account whichthe applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the opinion Executive’s receipt on an after-tax basis, of Tax Counselthe greatest amount of economic benefits under this and other agreements pertaining to the Payments, constitutes notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Executive and the Company otherwise agree in writing, any determination required under this Section 3.2(f) will be made in writing by the Company’s independent public accountants (the “Accountants”), whose reasonable compensation determination will be conclusive and binding upon the Executive and the Company for services actually renderedall purposes. For purposes of making the calculations required by this Section 3.2(f), within the meaning Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Sections 280G and 4999 of the Code. The Executive and the Company will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 280G(b)(4)(B) 3.2(f). If a reduction in Payments is necessary so that no portion of the Payments is subject to the excise tax under Section 4999 of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included reduction will occur in the Total Payments shall manner that results in the greatest economic benefit to Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Codereduced pro rata.

Section 280G Treatment. (a) In the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the severance of the Executive’s service with the Company, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to any excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash payments under Section 6.4 shall first be reduced, and the non-cash payments under Section 6.4 shall thereafter be reduced, only to the extent necessary so to assure that the Executive receives the greater of (i) the amount of such payments under Section 6.4 that would result in no portion of the Total Payments is being subject to the Excise TaxTax or (ii) the full amount of such payments under Section 6.4, after deducting from such payments the effect of the payment by the Executive of the Excise Tax on the Total Payments. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm (the “Auditor”) which was, immediately prior to the Change in Control, the Company’s independent auditor, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Section 280G Treatment. (a) In the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the severance termination of the Executive’s service with the Companyemployment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to any excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section section 280G of the Code in such other plan, arrangement or agreement, the cash payments under Section 6.4 shall first be reduced, and the non-cash payments under Section 6.4 shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm (the “Auditor”) which was, immediately prior to the Change in Control, the Company’s independent auditor, does not constitute a “parachute payment” within the meaning of Section section 280G(b)(2) of the Code (including by reason of Section section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of Section section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code.

Section 280G Treatment. (a) In the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the severance of the Executive’s 's service with the Company, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “"Total Payments”") would be subject (in whole or part), to any excise tax imposed under Section 4999 of the Code (the “"Excise Tax”"), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash payments under Section 6.4 shall first be reduced, and the non-cash payments under Section 6.4 shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “"payment” " within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“"Tax Counsel”") reasonably acceptable to the Executive and selected by the accounting firm (the “"Auditor”") which was, immediately prior to the Change in Control, the Company’s 's independent auditor, does not constitute a “"parachute payment” " within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Section 280G Treatment. (aA) In the event it is determined that any payment payment, distribution or benefits of any type by Matador to or for the benefit received of Xxxxxxx or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the severance of the Executive’s service with the CompanyContractor, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to any excise tax imposed under Section 4999 of the Code otherwise (the “Excise TaxChange in Control Payments”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash payments under Section 6.4 shall first be reduced, and the non-cash payments under Section 6.4 shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm (the “Auditor”) which was, immediately prior to the Change in Control, the Company’s independent auditor, does not constitute a “parachute paymentpayments” within the meaning of Section 280G(b)(2) of the Code, Matador will provide Xxxxxxx with a computation of (1) the maximum amount of the Change in Control Payments that could be made, without the imposition of the excise tax imposed by Section 4999 of the Code (including by reason of Section 280G(b)(4)(Asaid maximum amount being referred to as the “Capped Amount”); (2) the value of the Code) andChange in Control Payments that could be made pursuant to the terms of this Agreement (all said payments, in calculating distributions and benefits being referred to as the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, and “Uncapped Amount”); (iii) the dollar amount of the excise tax (if any) including any interest or penalties with respect to such excise tax which Xxxxxxx or Contractor would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Amount (the “Excise Tax Amount”); and (iv) the net value of the Uncapped Amount after reduction by the Excise Tax Amount and the estimated income taxes payable by Xxxxxxx or Contractor on the difference between the Uncapped Amount and the Capped Amount, assuming that Xxxxxxx is paying the highest marginal tax rate for state, local and federal income taxes (the “Net Uncapped Amount”). (B) If the Capped Amount is greater than the Net Uncapped Amount, Xxxxxxx or Contractor shall be entitled to receive or commence to receive payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, Xxxxxxx or Contractor shall be entitled to receive or commence to receive payments equal to the Uncapped Amount. If Xxxxxxx or Contractor receives the Uncapped Amount, then Xxxxxxx or Contractor shall be solely responsible for the payment of all income and excise taxes due from Xxxxxxx or Contractor and attributable to such Uncapped Amount, with no right of additional payment from Matador as reimbursement for any non-cash benefit taxes. (ii) All determinations required to be made under Section 14(c)(i)(A) shall be made in writing by the independent accounting firm agreed to by Matador and Xxxxxxx on the date of the Change in Control (the “Accounting Firm”), whose determination shall be conclusive and binding upon Xxxxxxx, Contractor and Matador for all purposes. For purposes of making the calculations required by Section 14(c)(i)(A), the Accounting 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. Matador, Xxxxxxx and Contractor shall furnish to the Accounting Firm such information and documents as it reasonably may request in order to make determinations under Section 14(c)(i)(A). If the Accounting Firm determines that no Excise Tax Amount is payable by Xxxxxxx and Contractor, it shall furnish Xxxxxxx and Contractor with an opinion that he/it has substantial authority not to report any excise tax pursuant to Section 4999 of the Code on his federal income tax return. Matador shall bear all costs the Accounting Firm may reasonably incur in connection with any calculations contemplated by Section 14(c)(i)(A). (iii) (A) If the computations and valuations required to be provided by Matador to Xxxxxxx pursuant to Section 14(c)(i)(A) are on audit challenged by the Internal Revenue Service as having been performed in a manner inconsistent with the requirements of Sections 280G and 4999 of the Code or if Section 409A of the Code is determined to apply to all or any deferred payment part of the payments to which Contractor, Xxxxxxx or benefit included his survivors may be entitled under this Agreement and as a result of such audit or determination, (1) the amount of cash and the benefits provided for in Section 14(c)(i) remaining to Xxxxxxx and Contractor after completion of such audit or determination is less than (2) the Total Payments shall be determined by amount of cash and the Auditor benefits which were paid or provided to Xxxxxxx and Contractor on the basis of the calculations provided for in accordance with Section 14(c)(i)(A) (the principles of Sections 280G(d)(3difference between (1) and (42) being referred to as the “Shortfall Amount”), then Xxxxxxx and Contractor shall be entitled to receive an additional payment (an “Indemnification Payment”) in an amount such that, after payment by Xxxxxxx and Contractor of all taxes (including additional excise taxes under said Section 4999 of the CodeCode and any interest and penalties imposed with respect to any taxes) imposed upon the Indemnification Payment and all reasonable attorneys’ and accountants’ fees incurred by Xxxxxxx and Contractor in connection with such audit or determination, Xxxxxxx and Contractor retain an amount of the Indemnification Payment equal to the Shortfall Amount. Matador shall pay the Indemnification Payment to Xxxxxxx and Contractor in a lump sum cash payment within thirty (30) days of the completion of such audit or determination.

Section 280G Treatment. (a) a. In the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the severance of the Executive’s service with the Company, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) agreement (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to any excise tax imposed under Section 4999 of the Code (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “Code”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash payments under Section 6.4 1 shall first be reduced, and the non-cash payments under Section 6.4 1 shall thereafter be reduced, only to the extent necessary so to assure that the Executive receives the greater of (i) the amount of such payments under Section 1 that would result in no portion of the Total Payments is being subject to the Excise TaxTax or (ii) the full amount of such payments under Section 1, after deducting from such payments the effect of the payment by the Executive of the Excise Tax on the Total Payments. (b) b. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm (the “Auditor”) which was, immediately prior to the Change in Control, was the Company’s independent auditorauditor as of the date of this Agreement, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount base amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Section 280G Treatment. (a) In the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a change in ownership or control as defined under Section 280G of the Code (a “Change in Control Control”) or the severance of the Executive’s 's service with the Company, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “"Total Payments”") would be subject (in whole or part), to any excise tax imposed under Section 4999 of the Code (the “"Excise Tax”"), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash payments under Section 6.4 6.5 shall first be reduced, and the non-cash payments under Section 6.4 6.5 shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “"payment” " within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“"Tax Counsel”") reasonably acceptable to the Executive and selected by the accounting firm (the “"Auditor”") which was, immediately prior to the Change in Control, the Company’s 's independent auditor, does not constitute a “"parachute payment” " within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.