Limitation on Payments Clause Example with 260 Variations from Business Contracts
This page contains Limitation on Payments clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's benefits under Section 3 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excis...e tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.View More
Variations of a "Limitation on Payments" Clause from Business Contracts
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) 0 ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax impo...sed by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will such Payment shall either be either: (a) (i) delivered in full, or (b) (ii) delivered as to such lesser extent which would result in no portion of such benefits Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, largest payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of the Code. If The accounting firm engaged by Broadcom for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. Broadcom shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to Broadcom and Executive within fifteen (15) calendar days after the date on which Executive's right to a Payment is triggered (if requested at that time by Broadcom or Executive) or such other time as requested by Broadcom or Executive. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Broadcom and Executive. Any reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered pursuant to a lesser extent, reduction this Section 7 will occur in the following order: (1) reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; (2) cancellation of accelerated vesting of Equity Awards; equity awards other than share options; (3) cancellation of accelerated vesting of share options; and (4) reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is other benefits payable to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5. Executive. View More
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax impose...d by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will such Payment shall either be either: (a) (i) delivered in full, or (b) (ii) delivered as to such lesser extent which would result in no portion of such benefits Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, largest payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of the Code. If The accounting firm engaged by Broadcom for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. Broadcom shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to Broadcom and Executive within fifteen (15) calendar days after the date on which Executive's right to a Payment is triggered (if requested at that time by Broadcom or Executive) or such other time as requested by Broadcom or Executive. Any good faith determinations of the accounting firm made hereunder shall be final, 3 binding and conclusive upon Broadcom and Executive. Any reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered pursuant to a lesser extent, reduction this Section 7 will occur in the following order: (1) reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; (2) cancellation of accelerated vesting of Equity Awards; equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is other benefits payable to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5. Executive. View More
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax impose...d by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will such Payment shall either be either: (a) (i) delivered in full, or (b) (ii) delivered as to such lesser extent which would result in no portion of such benefits Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, largest payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of the Code. If The accounting firm engaged by Broadcom for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. Broadcom shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to Broadcom and Executive within fifteen (15) calendar days after the date on which Executive's right to a Payment is triggered (if requested at that time by Broadcom or Executive) or such other time as requested by Broadcom or Executive. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Broadcom and Executive. Any reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered pursuant to a lesser extent, reduction this Section 7 will occur in the following order: (1) reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; (2) cancellation of accelerated vesting of Equity Awards; equity awards other than share options; (3) cancellation of accelerated vesting of share options; and (4) reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is other benefits payable to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5. Executive. View More
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax impose...d by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will such Payment shall either be either: (a) (i) delivered in full, or (b) (ii) delivered as to such lesser extent which would result in no portion of such benefits Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, largest payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of the Code. If The accounting firm engaged by Broadcom for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations, and, in connection therewith, shall perform customary parachute mitigation analysis and calculations. Broadcom shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to Broadcom and Executive within fifteen (15) calendar days after the date on which Executive's right to a Payment is triggered (if requested at that time by Broadcom or Executive) or such other time as requested by Broadcom or Executive. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Broadcom and Executive. Any reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered pursuant to a lesser extent, reduction this Section 10 will occur in the following order: (1) reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; (2) cancellation of accelerated vesting of Equity Awards; equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is other benefits payable to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5. Executive. View More
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of -9- Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax im...posed by Section 4999 of the Code, Code (the "Excise Tax"), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive's benefits under Section 3 will be either: (a) delivered after-tax proceeds: (i) payment in full, full of the entire amount of the Payment (a "Full Payment"), or (b) delivered as to such lesser extent which would result in no portion (ii) payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax (all computed at the highest 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 receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 subject to the Excise Tax. (a) The independent registered public accounting firm engaged by the Company for general audit purposes as of the Code. If a reduction day prior to the effective date of the Change in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is Control shall make all determinations required to be reduced, such acceleration of vesting will be cancelled made under this Section 5. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the Change in Control, the reverse order of Company shall appoint a nationally recognized independent registered public accounting firm to make the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion determinations required hereunder. The Company shall bear all expenses with respect to the ordering of payment reductions. Unless determinations by such independent registered public accounting firm required to be made hereunder. (b) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing at such time as requested by the Company's Company or Executive. If the independent registered public accountants immediately prior accounting firm determines that no Excise Tax is payable with respect to a Change of Control Payment, either before or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning after the application of Sections 280G and 4999 of the Code. The Reduced Payment, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will furnish be imposed with respect to such Payment. Any good faith determinations of the Firm such information accounting firm made hereunder shall be final, binding and documents as conclusive upon the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5. and Executive. View More
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax impose...d by Section 4999 of the Code, Code (the "Excise Tax"), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive's benefits under Section 3 will be either: (a) delivered after-tax proceeds: (i) payment in full, full of the entire amount of the Payment (a "Full Payment"), or (b) delivered as to such lesser extent which would result in no portion (ii) payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in -10- federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 subject to the Excise Tax. (a) The independent registered public accounting firm engaged by the Company for general audit purposes as of the Code. If a reduction day prior to the effective date of the Change in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is Control shall make all determinations required to be reduced, such acceleration of vesting will be cancelled made under this Section 5. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the Change in Control, the reverse order of Company shall appoint a nationally recognized independent registered public accounting firm to make the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion determinations required hereunder. The Company shall bear all expenses with respect to the ordering of payment reductions. Unless determinations by such independent registered public accounting firm required to be made hereunder. (b) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing at such time as requested by the Company's Company or Executive. If the independent registered public accountants immediately prior accounting firm determines that no Excise Tax is payable with respect to a Change of Control Payment, either before or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning after the application of Sections 280G and 4999 of the Code. The Reduced Payment, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will furnish be imposed with respect to such Payment. Any good faith determinations of the Firm such information accounting firm made hereunder shall be final, binding and documents as conclusive upon the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5. and Executive. View More
Limitation on Payments. In (a)If any payment or benefit (including payments and benefits pursuant to this Agreement) that Executive would receive in connection with a Change in Control from the event that the severance and other benefits provided for in this Agreement Company or otherwise payable to Executive ("Transaction Payment") would (i) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would sentence, be subject to the excise tax imposed by... Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will the Company shall cause to be either: (a) delivered in full, or (b) delivered as determined, before any amounts of the Transaction Payment are paid to such lesser extent Executive, which of the following two alternative forms of payment would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Transaction Payment notwithstanding that all or some portion of such benefits the Transaction Payment may be taxable under Section 4999 subject to the Excise Tax: (1) payment in full of the Code. entire amount of the Transaction Payment (a "Full Payment"), or (2) payment of only a part of the Transaction Payment so that Executive receives the largest payment possible without the imposition of the Excise Tax (a "Reduced Payment") . For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment 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). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (1) reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; (2) cancellation of accelerated vesting of Equity Awards; equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefits. other benefits paid to Executive. In the event that acceleration of vesting of Equity Award equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. equity awards. In no event will the Company, Parent or any stockholder be liable to Executive have for any discretion amounts not paid as a result of the operation of this Section 4. (b)The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the Change in Control shall make all determinations required to be made under this Section 4. If the professional 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 independent registered public accounting firm to 4. DocuSign Envelope ID: 9D93CBF8-C033-4EF4-AA3E-BA3E6C2346C5 make the determinations required hereunder. The Company shall bear all 5. DocuSign Envelope ID: 9D93CBF8-C033-4EF4-AA3E-BA3E6C2346C5 expenses with respect to the ordering of payment reductions. Unless determinations by such professional firm required to be made hereunder. (c)The professional firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by within 15 calendar days after the Company's independent public accountants immediately prior date on which Executive's right to a Change of Control Transaction Payment is triggered or such other person time as reasonably requested by the Company or entity Executive. If the professional firm determines that no Excise Tax is payable with respect to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning Transaction Payment, either before or after the application of Sections 280G and 4999 of the Code. The Reduced Amount, it shall furnish the Company and Executive with detailed supporting calculations of its determinations that no Excise Tax will furnish be imposed with respect to such Transaction Payment. Any good faith determinations of the Firm such information professional firm made hereunder shall be final, binding and documents as conclusive upon the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5. and Executive. View More
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax impose...d by Section 4999 of the Code, Code (the "Excise Tax"), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive's benefits under Section 3 will be either: (a) delivered after-tax proceeds: (i) payment in full, full of the entire amount of the Payment (a "Full Payment"), or (b) delivered as to such lesser extent which would result in no portion (ii) payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax (all computed at the highest 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 receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 subject to the Excise Tax. (a) The independent registered public accounting firm engaged by the Company for general audit purposes as of the Code. If a reduction day prior to the effective date of the Change in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is Control shall make all determinations required to be reduced, such acceleration of vesting will be cancelled made under this Section 5. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the Change in Control, the reverse order of Company shall appoint a nationally recognized independent registered public accounting firm to make the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion determinations required hereunder. The Company shall bear all expenses with respect to the ordering of payment reductions. Unless determinations by such independent registered public accounting firm required to be made hereunder. (b) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing at such time as requested by the Company's Company or Executive. If the independent registered public accountants immediately prior accounting firm determines that no Excise Tax is payable with respect to a Change of Control Payment, either before or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning after the application of Sections 280G and 4999 of the Code. The Reduced Payment, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will furnish be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. 12 6. Successors. (a) Company's Successors. Any successor to the Firm such information Company (whether direct or indirect and documents whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company's business and/or assets shall assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Firm may reasonably request Company would be required to perform such obligations in order to make the absence of a determination succession. For all purposes under this Section. The Company will bear all costs Agreement, the Firm may incur term "Company" shall include any successor to the Company's business and/or assets which executes and delivers the assumption agreement described in connection with any calculations contemplated by this Section 5. 6(a) or which becomes bound by the terms of this Agreement by operation of law. (b) Executive's Successors. The terms of this Agreement and all rights of Executive hereunder shall inure to the benefit of, and be enforceable by, Executive's personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. View More
Limitation on Payments. In the event that the severance and other benefits provided for (a) Anything in this Agreement to the contrary notwithstanding, if any payment or benefit Executive would receive from the Company or otherwise payable to Executive ("Payment") would (i) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Code; and (ii) but for this Section 5, would sentence, be subject to the excise tax imposed by Section 4999 of the Code, Code (the "Excise Tax"), then Executi...ve's benefits under Section 3 will such Payment shall be either: (a) delivered in full, or (b) delivered as equal to such lesser extent which the Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of the Payment that would result in no portion of such benefits the Payment being subject to excise tax under Section 4999 the Excise Tax; or (y) the largest portion, up to and including the total, of the Code, Payment, whichever of the foregoing amounts, amount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the excise tax imposed by Section 4999, Excise Tax (all computed at the highest applicable marginal rate), results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, notwithstanding that all or some portion the Payment. Any reduction made pursuant to this Section 5(a) shall be made in accordance with the following order of such benefits may be taxable under Section 4999 priority: (i) stock options whose exercise price exceeds the fair market value of the Code. If a reduction optioned stock ("Underwater Options"), (ii) Full Credit Payments (as defined below), that are payable in severance cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable, (v) Partial Credit Payments (as defined below) and other benefits constituting "parachute payments" is necessary so (vi) non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to be reduced (with reductions made pro-rata in the event payments or benefits are delivered owed at the same time). "Full Credit Payment" means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to a lesser extent, reduction will occur the terms of this Agreement or otherwise, that if reduced in value by one dollar reduces the following order: reduction amount of cash payments; cancellation the parachute payment (as defined in Section 280G of Equity Awards granted "contingent the Code) by one dollar, determined as if such payment, distribution or benefit had been paid or distributed on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. the event triggering the excise tax. "Partial Credit Payment" means any payment, distribution or benefit that is not a Full Credit Payment. In no event will shall the Executive have any discretion with respect to the ordering of payment reductions. 202 Cousteau Place • Suite 105 • Davis, CA 95618 • Tel: 530-756-7077 • Fax: 530-756-7027 • Web: www.arcadiabio.com (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company's an independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree firm (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, the 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. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. Section 5. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. View More
Limitation on Payments. In If any payment or benefit the event that Employee would receive from the severance and other benefits provided for Company pursuant to a Change in this Agreement Control or otherwise payable to Executive ("Payment") would: (i) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code section 280G, and (ii) but for this Section 5, would sentence, be subject to the excise tax imposed by Section Internal Revenue Code section 4999 (the "Excis...e Tax"), then such Payment shall be equal to either : (x) the largest portion of the Code, then Executive's benefits under Section 3 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which Payment that would result in no portion of such benefits the Payment being subject to excise tax under Section 4999 the Excise Tax, or (y) the largest portion, up to and including the total, of the Code, Payment, whichever of the foregoing amounts, amount, after taking into account the all applicable federal, state and local employment taxes, income taxes and the excise tax imposed by Section 4999, Excise Tax (all computed at the highest applicable marginal rate), results in the receipt by Executive Employee's receipt, on an the after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax. If a reduction in severance and other payments or benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, the Payment equals the Reduced Amount, reduction will shall occur first in the following order: reduction of cash payments; payments, then in cancellation of Equity Awards granted "contingent Acceleration, and finally in employee benefits, unless the Employee elect in writing a different order (provided, however, that such election shall be subject to Board approval if made on a change in ownership or control" within after the meaning effective date of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. the event that triggers the Payment). In the event that acceleration of vesting of Equity Award compensation Acceleration is to be reduced, such acceleration of vesting will it shall be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In the Employee's Options (i.e., earliest granted Option cancelled last) unless the Employee elects a different order of cancellation in writing. The Company and the Employee intend that any amounts payable under this Agreement, and the Company's and the Employee's exercise of authority or discretion hereunder, shall either be exempt from or comply with the provisions of Internal Revenue Code section 409A and the regulations relating thereto so as not to subject the Employee to the payment of interest and/or any tax penalty that may be imposed under Internal Revenue Code section 409A . The Employee acknowledges and agrees that the Company has made no event will the Executive have any discretion representation to him or her with respect to the ordering tax treatment of payment reductions. Unless the compensation and benefits provided pursuant to this Agreement and that the Employee is solely responsible for all taxes due with respect to such compensation and benefits The accounting firm engaged by the Company and Executive otherwise agree for general audit purposes as of the day prior to the effective date of the Change in writing, any determination Control shall perform the calculations described above. 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, however, the Company shall appoint a nationally recognized accounting firm to make the determinations required under this Section 5 will hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made in writing hereunder. Page 3 The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Employee and the Company within fifteen (15) calendar days after the date on which the Employee's right to a Payment is triggered (if requested at the time by the Company's independent public accountants immediately prior to a Change of Control Employee or the Company), or such other person time as requested by the Employee or entity the Company. If the accounting firm determines that no Excise Tax is payable with respect to which a Payment, either before or after the parties mutually agree (the "Firm"), whose determination application of the Reduced Amount, it shall furnish the Employee and the Company with an opinion reasonably acceptable to the Employee stating that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive and binding upon Executive the Employee and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.View More
