Common use of Sections 280G and 4999 of the Code Clause in Contracts

Sections 280G and 4999 of the Code. If the Participant becomes entitled to any payment or benefit under this Agreement (such benefits together with any other payments or benefits payable under any other agreement with, or plan or policy of, the Company or Group Company being the “Total Payments”) and all or any part of the Total Payments will, as determined by the Company, be subject to the tax imposed by Section 4999 of the Code (or any similar tax that may be hereafter imposed) (the “Excise Tax”), then such payment shall be either: (i) the full payment, subject to the payment of the Excise Tax by the Participant; or (ii) such lesser amount that would result in no portion of the payment being subject to Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes and the Excise Tax, as well as the phase out of itemized deductions and personal exemptions related to such payments, results in the receipt by the Participant, on an after-tax basis, of the greatest amount of the payment notwithstanding that all or some portion of the payment may be taxable under Section 4999 of the Code. Any such reduction shall be made by the Company in compliance with all applicable legal authority, including Section 409A of the Code. All determinations required to be made under this Section shall be made by the nationally recognized U.S. accounting firm selected by the Company (the “Accounting Firm”). The Company shall require the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and the Participant. Notice must be given to the Accounting Firm within 15 business days after an event entitling the Participant to a payment under this Section. All fees and expenses of the Accounting Firm related to this determination shall be borne solely by the Company. The Total Payments shall be reduced by the Company in the following order: first, any cash payment that is exempt from Section 409A of the Code, and second any other payments or benefits on a pro-rata basis.

Sections 280G and 4999 of the Code. If In the Participant event that the Executive becomes entitled to any payment or benefit under this Agreement (such benefits together with any other payments or benefits payable to the Executive under any other agreement withwith the Executive, or plan or policy ofof the Company, are referred to in the Company or Group Company being aggregate as the “Total Payments”) and ), if all or any part of the Total Payments will, as determined by the Company, will be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and all regulations, interpretations and administrative guidance issued thereunder (the “Code”), or any similar tax that may hereafter be hereafter imposed) imposed (the “Excise Tax”), then such payment shall be eitherthen: (a) Within 30 days following an event entitling the Executive to a payment under this Agreement, the Company will notify the Executive in writing: (i) whether the full paymentpayments and benefits under this Agreement, when added to any other payments and benefits making up the Total Payments, exceed an amount equal to 299% of the Executive’s “base amount” as defined in Section 280G(b)(3) of the Code (the “299% Amount”); and (ii) the amount that is equal to the 299% Amount. (b) The payments and benefits under this Agreement shall be reduced such that the Total Payments do not exceed the 299% Amount, so that no portion of the payments and benefits under this Agreement will be subject to the Excise Tax. Any payment or benefit so reduced will be permanently forfeited and will not be paid to the Executive. (c) The calculation of the 299% Amount and the determination of how much the Executive’s payments and benefits must be reduced in order to avoid application of the Excise Tax by the Participant; or (ii) such lesser amount that would result in no portion of the payment being subject to Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes and the Excise Tax, as well as the phase out of itemized deductions and personal exemptions related to such payments, results in the receipt by the Participant, on an after-tax basis, of the greatest amount of the payment notwithstanding that all or some portion of the payment may be taxable under Section 4999 of the Code. Any such reduction shall will be made by the Company in compliance with all applicable legal authority, including Section 409A of the Code. All determinations required to be made under this Section shall be made by the nationally recognized U.S. public accounting firm selected by prior to the Company Executive’s termination of employment, which firm must be reasonably acceptable to the Executive (the “Accounting Firm”). The Company shall require will cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and the ParticipantExecutive. Notice must be given to the Accounting Firm within 15 business days after an event entitling the Participant Executive to a payment under this SectionAgreement. All fees and expenses of the Accounting Firm related to this determination shall will be borne solely by the Company. The Total Payments shall . (d) For purposes of making the reduction of amounts payable under this Agreement, such amounts will be reduced by eliminated in compliance with the Company requirements of Section 409A of the Code and in the following order: first, (1) any cash payment that is exempt compensation, (2) any health or welfare benefits, and (3) any equity compensation. Reductions of such amounts will take place in the chronological order with respect to which such amounts would be paid from Section 409A the date of the Code, and second event entitling the Executive to a payment under this Agreement absent any other payments or benefits on a pro-rata basisacceleration of payment.