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) 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 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 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.

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 '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. (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.