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, Internal Revenue Code of 1986, as amended (the "Code") and (ii)
but for this Section 5, would 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 this Agreement shall be either:
(a) delivered (a)delivered in
full, ...full or (b) delivered (b)delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, Excise Tax, 4 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, 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 shall 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 nationally recognized tax advisory firm (the "Firm"), "Accountants"), whose determination will shall 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 Accountants 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 shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. Section 5. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. In the event that a reduction is required, the reduction shall be applied first to any benefits that are not subject to Section 409A of the Code, and then shall be applied to benefits (if any) that are subject to Section 409A of the Code, with the benefits payable latest in time subject to reduction first.
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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, Code and (ii)
but for this Section 5, would 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 this Agreement shall be either: (a) delivered in
full, full or
5 (b) delivered as to such lesser extent which would re
...sult in no portion of such benefits 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, 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 6 shall 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"), "Accountants"), whose determination will shall be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 6, the Firm Accountants 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 shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. Section 6. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 6. In the event that a reduction is required, the reduction shall be applied first to any benefits that are not subject to Section 409A of the Code, and then shall be applied to benefits (if any) that are subject to Section 409A of the Code, with the benefits payable latest in time subject to reduction first.
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Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to
Executive Employee (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 Employee's benefits under Section
3 4 will be either:
-6- (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such benef
...its being subject to the 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 Employee 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: (i) reduction of cash payments; payments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first cash payment to be reduced); (ii) cancellation of Equity Awards equity awards that were granted "contingent on a change in ownership or control" within the meaning of Section 280G of the 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 awards (that is, the most recently granted equity awards will be cancelled first); (iii) reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the awards (that is, the vesting of the most recently granted equity awards will be cancelled first); and (iv) reduction of employee benefits in reverse chronological order (that is, the benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first benefit to be reduced). In no event will the Executive shall Employee have any discretion with respect to the ordering of payment reductions. Employee will be solely responsible for the payment of all personal tax liability that is incurred as a result of the payments and benefits received under this Agreement, and Employee will not be reimbursed, indemnified, or held harmless by the Company for any of those payments of personal tax liability. Unless the Company and Executive Employee otherwise agree in writing, any determination required under this Section 5 will be made in writing by nationally recognized accounting or valuation firm selected by the Company's independent public accountants immediately prior to a Change of Control Company or such other person or entity to which the parties mutually agree (the "Firm"), "Accountants"), whose determination will be conclusive and binding upon Executive Employee and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants 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 Employee will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear the costs and make all costs payments for the Firm may incur Accountants' services in connection with any calculations contemplated by this Section 5. Section. The Company will have no liability to Employee for the determinations of the Accountants.
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Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to
Executive Employee (i) constitute "parachute payments" within the meaning of Section 280G of the Code, and (ii) but for this Section
5, 5 would be subject to the excise tax imposed by Section 4999 of the Code, then
Executive's Employee's benefits under Section
3 4 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such benefit
...s being subject to the 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 Employee 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: (i) reduction of cash payments; payments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first cash payment to be reduced); (ii) cancellation of Equity Awards equity awards that were granted "contingent on a change in ownership or control" within the meaning of Section 280G of the 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 awards (that is, the most recently granted equity awards will be cancelled first); (iii) reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the awards (that is, the vesting of the most recently granted equity awards will be cancelled first); and (iv) reduction of employee benefits in reverse chronological order (that is, the benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first benefit to be reduced). In no event will the Executive shall Employee have any discretion with respect to the ordering of payment reductions. Employee will be solely responsible for the payment of all personal tax liability that is incurred as a result of the payments and benefits received under this Agreement, and Employee will not be reimbursed, indemnified, or held harmless by the Company for any of those payments of personal tax liability. Unless the Company and Executive Employee otherwise agree in writing, any determination required under this Section 5 will be made in writing by nationally recognized accounting or valuation firm selected by the Company's independent public accountants immediately prior to a Change of Control Company or such other person or entity to which the parties mutually agree (the "Firm"), "Accountants"), whose determination will be conclusive and binding upon Executive Employee and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 5 the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and 7 may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive Employee will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear the costs and make all costs payments for the Firm may incur Accountants' services in connection with any calculations contemplated by this Section 5. Section. The Company will have no liability to Employee for the determinations of the Accountants.
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Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to
Executive Employee (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 Employee's benefits under Section
3 4 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 the excise tax under Section 4999 of the Code, -7- 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 Employee 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: (i) reduction of cash payments; payments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first cash payment to be reduced); (ii) cancellation of Equity Awards equity awards that were granted "contingent on a change in ownership or control" within the meaning of Section 280G of the 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 awards (that is, the most recently granted equity awards will be cancelled first); (iii) reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the awards (that is, the vesting of the most recently granted equity awards will be cancelled first); and (iv) reduction of employee benefits in reverse chronological order (that is, the benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first benefit to be reduced). In no event will the Executive shall Employee have any discretion with respect to the ordering of payment reductions. Employee will be solely responsible for the payment of all personal tax liability that is incurred as a result of the payments and benefits received under this Agreement, and Employee will not be reimbursed, indemnified, or held harmless by the Company for any of those payments of personal tax liability. Unless the Company and Executive Employee otherwise agree in writing, any determination required under this Section 5 will be made in writing by nationally recognized accounting or valuation firm selected by the Company's independent public accountants immediately prior to a Change of Control Company or such other person or entity to which the parties mutually agree (the "Firm"), "Accountants"), whose determination will be conclusive and binding upon Executive Employee and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants 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 Employee will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear the costs and make all costs payments for the Firm may incur Accountants' services in connection with any calculations contemplated by this Section 5. Section. The Company will have no liability to Employee for the determinations of the Accountants.
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Limitation on Payments. In the event that the
severance and other payments or benefits provided for in this Agreement or otherwise payable to Executive
(collectively, the "Payments") (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii) but for this Section
5, 11, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's
benefits under Section 3 the Payments will be either: (a) delivered in full, or (b) delivered as to such lesser extent which w
...ould result in no portion of such benefits Payments 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 on an after-tax basis, of the greatest amount of benefits, Payments, notwithstanding that all or some portion of such benefits Payments may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits Payments constituting "parachute payments" is necessary so that benefits the Payments are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; cancellation payments, which shall occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence 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 event triggering such excise tax will be the first cash payment to be reduced; (ii) 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 equity awards, which shall occur in the reverse order of the date of grant for such stock awards (i.e., the vesting of Executive's Equity Awards. the most recently granted stock awards will be reduced first); and (iii) reduction of other benefits paid or provided to the Executive, which shall occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced. If more than one equity award was made to the Executive on the same date of grant, all such awards shall have their acceleration of vesting reduced pro rata. In no event will shall 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 11 will be made in writing by the Company's a nationally recognized firm of independent public accountants immediately prior to a Change of Control or such other person or entity to which selected by the parties mutually agree Company (the "Firm"), "Accountants"), 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, 11, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations -7- concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 11.
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Limitation on Payments.
(a) In the event that the severance and other benefits provided for in this Agreement or otherwise payable to
the Executive (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code ("Section 280G Payments") and (ii) but for this Section
5, 4, would be subject to the excise tax imposed by Section 4999 of the Code, then
the Executive's
severance benefits under
Section 3 this Agreement will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent w
...hich would result in no portion of such severance 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 the Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. (b) 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 the payments and benefits shall be reduced in the following order: (A) a pro rata reduction of (i) cash payments; payments that are subject to Section 409A as deferred compensation and (ii) cash payments not subject to Section 409A; (B) a pro rata cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of (i) accelerated vesting of Equity Awards; stock and other equity-based awards that are subject to Section 409A of the Code as deferred compensation and (ii) stock and other equity-based awards not subject to Section 409A; and (C) a pro rata reduction of (i) employee benefits. benefits that are subject to Section 409A as deferred compensation and (ii) employee benefits not subject to Section 409A. In the event that acceleration of vesting of Equity Award equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. equity awards. 2 (c) Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 4 will be made in writing by an independent firm, chosen 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 Company (the "Firm"), whose determination will be conclusive and binding upon the Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 4, 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 the 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 reasonably incur in connection with any calculations contemplated by this Section 5. 4. (d) The Company may solicit the stockholders of the Company for approval of any Section 280G Payments pursuant to Section 280G(b)(5)(B) of the Code, so that such payments and benefits may not constitute Section 280G Payments, unless the Company determines in good faith that it would be adverse to the interests of the Company or its stockholders to do so.
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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, Code and (ii) but for this Section
5, 14, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's
severance and other 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
se...verance and other benefits being subject to the 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 on an after-tax basis, of the greatest amount of severance and other benefits, notwithstanding that all or some portion of such severance and other benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting "parachute payments" is necessary so that no portion of such severance benefits are delivered is subject to a lesser extent, the excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (1) reduction of the cash payments; cancellation of Equity Awards granted "contingent on a change severance payments, in ownership or control" within the meaning of Code Section 280G; order that such payments would otherwise have been paid; (2) cancellation of accelerated vesting of Equity Awards; and reduction equity awards that vest, in whole or in part, based on the achievement 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 performance criteria, in the reverse order that such awards would have vested; (3) cancellation of accelerated vesting of equity awards that vest based solely on continued service, in the order of the date percentage of grant the fair market value of Executive's Equity Awards. In no event will such awards that constitutes a parachute payment (commencing with the Executive have any discretion with respect largest percentage); and (4) reduction of continued employee benefits. Notwithstanding the foregoing, to the ordering extent the Company submits any payment or benefit payable to Executive under this Agreement or otherwise to the Company's stockholders for approval in accordance with Treasury Regulation Section 1.280G-1 Q&A 7, the foregoing provisions shall not apply following such submission and such payments and benefits will be treated in accordance with the results of payment reductions. such vote, except that any reduction in, or waiver of, such payments or benefits required by such vote will be applied without any application of discretion by Executive and in the order prescribed by this Section 14. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 14 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, 14, 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 14. The Company will bear the fees of the Firm and all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. 14.
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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, Code and (ii)
but for this Section 5, would 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 this Agreement shall be either: (a) delivered in
full, full or (b) delivered as to such lesser extent which would resu
...lt in no portion of such benefits 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, 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 6 shall 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"), "Accountants"), whose determination will shall be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 6, the Firm Accountants 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 shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. Section 6. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 6. In the event that a reduction is required, the reduction shall be applied first to any benefits that are not subject to Section 409A of the Code, and then shall be applied to benefits (if any) that are subject to Section 409A of the Code, with the benefits payable latest in time subject to reduction first.
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Limitation on Payments.
(a) In the event that the severance and other benefits provided for in this
Agreement Plan or otherwise payable to
the Executive (i) constitute "parachute payments" within the meaning of Section 280G of
the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then
the Executive's
severance benefits
and other payments under Section
3 will 3(d) shall be either:
(a) (A) delivered in full, or
(b) (B) delivered as to such lesser extent wh
...ich would result in no portion of such severance benefits and other payments 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 the Executive on an after-tax basis, of the greatest amount of benefits, severance benefits and other payments, notwithstanding that all or some portion of such severance benefits and other payments may be taxable under Section 4999 of the Code. (b) If a reduction in severance and other benefits constituting "parachute payments" as defined in Section 280G of the Code, is necessary so that benefits are delivered to a lesser extent, reduction will shall occur in the following order: manner: (i) first a pro-rata reduction of cash payments; payments subject to Section 409A of the Code as deferred compensation and cash payments not subject to Section 409A of the Code, and (ii) second a pro rata cancellation of Equity Awards granted "contingent on a change (A) equity-based compensation subject to Section 409A of the Code as deferred compensation and (B) equity-based compensation not subject to Section 409A of the Code. Reduction in ownership either cash payments or control" within equity compensation benefits shall be made pro-rata between and among benefits which are subject to Section 409A of the meaning Code and benefits which are exempt from Section 409A of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. the Code. In the event that acceleration of the accelerated vesting of Equity Award compensation equity awards is to be reduced, cancelled, such vesting acceleration of vesting will shall be cancelled in the reverse chronological order of the date of Executive's equity awards' grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. dates. 7 (c) Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by the Company's independent public accountants immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree (the "Firm"), "Accountants"), whose determination will shall be conclusive and binding upon the Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants 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 the Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5.
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