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 To the event extent that any of the severance and other payments or benefits provided for in this Agreement or otherwise payable to Executive (i) the Employee (collectively the "Payments") constitute "parachute payments" within the meaning of Section 280G of the Code, and (ii) Code and, 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 such Payment shall be either: (a) deliver...ed 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 Payments that would result in no portion of such benefits the Payments 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, Payments, 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 Employee's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payments 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 in the following order: order unless the Employee elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): 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 Awards is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive's the Employee's Equity Awards. In no event will Awards (i.e., earliest granted Equity Awards cancelled last) unless the Executive have any discretion Employee elects in writing a different order for cancellation. 6 The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Hostile Takeover or Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Hostile Takeover or Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the ordering of payment reductions. Unless determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Employee and the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing within fifteen (15) calendar days after the date on which the Employee's right to a Payment is triggered (if requested at that 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 the parties mutually agree (the "Firm"), whose determination Payments, either before or after the application of the Reduced Amount, it shall furnish the Employee and the Company with an opinion reasonably acceptable to the Employee 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
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 the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. The Company 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 the Company 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 the Company or 3 Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company 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 6 will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change order, in ownership or control" within each case, in reverse chronological order beginning with the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event Payment that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled paid the furthest in the reverse order time from consummation of the date transaction that is subject to Section 280G of grant the Code: (1) cash payments, non-cash forms of Executive's Equity Awards. In no event will benefits and equity-based payments and acceleration, in each case to the Executive have any discretion with respect extent not subject to Section 409A of the Code (with the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this reduction among such amounts determined by Executive); (2) cash payments subject to 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 409A of the Code. The Company Code; (3) equity-based payments and Executive will furnish acceleration subject to Section 409A of the Firm such information Code; and documents as (4) non-cash forms of benefits subject to Section 409A of the Firm may reasonably request Code; provided that in order the case of all the foregoing Payments, all amounts or payments that are not subject to make a determination calculation under this Section. The Company will bear all costs the Firm may incur in connection with Treas. Reg. §1.280G-1, Q&A-24(b) or (c) shall be reduced before any calculations contemplated by this Section 5. amounts that are subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c). 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 the shall Executive have any discretion with respect to the ordering of payment reductions. (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 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. (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 the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive you (i) constitute "parachute payments" within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, 19, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's your severance 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 sev...erance 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 truces and the excise tax imposed by Section 4999, results in the receipt by Executive you on an after-tax 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. 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 the excise tax under Section 4999 of the Code, the reduction shall occur on a lesser extent, non-discretionary basis in such a way as to minimize the reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent economic value deliverable to you. Where one payment or benefit has the same value for this purpose and they are payable at Exhibit 10.12 different times, they will be reduced on a change pro rata basis. If, as a result of subsequent events or conditions, it is determined that payments have been reduced by more than the minimum amount required, then an additional payment shall be made to you in ownership or control" an amount equal to the excess reduction within 60 days of the meaning date on which the amount of Code Section 280G; cancellation the excess reduction is determined, but not later than December 31 of accelerated vesting of Equity Awards; and the year in which the excess reduction of employee benefits. is determined. 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 Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. your equity awards. Unless the Company Corporation and Executive you otherwise agree in writing, any determination required under this Section 5 19 will be made in writing by the Company's an independent public accountants firm immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive you and the Company. Corporation for all purposes. For purposes of making the calculations required by this Section 5, 19, the Firm Finn may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G 2800 and 4999 of the Code. The Company Corporation and Executive you will furnish to the Firm such information and documents as the Firm Finn may reasonably request in order to make a determination under this Section. Section 19. The Company Corporation will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. 19. In this Agreement the expression "Associate" shall include all those persons and entities that are included within the definition or meaning of "associate" as set forth in Section 1(1) of the Securities Act (British Columbia), as amended, or any successor legislation of similar force and effect, andshall also include your spouse, children, parents, brothers and sisters. For this purpose, the definition of "associate" in the Securities Act(British Columbia) is as follows if used to indicate a relationship with any person: (i) a partner, other than a limited partner, of that person, (ii) a trust or estate in which that person has a substantial beneficial interest or for which that person serves as trustee or in a similar capacity, Exhibit 10.12 (iii) an issuer in respect of which that person beneficially owns or controls, directly or indirectly, voting securities carrying more than 10% of the voting rights attached to all outstanding voting securities of the issuer or (iv) a relative, including the spouse, of that person or a relative of that person's spouse, if the relative has the same home as that person. 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 b...y 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. 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 make the determinations required hereunder. The Company shall bear all 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 (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 b...y 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 make the determinations required hereunder. The Company shall bear all expenses with respect to the ordering of payment reductions. Unless determinations by such professional firm required to be made hereunder. 4 (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 (a) Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or benefit Executive would receive pursuant to this Agreement or otherwise payable to Executive ("Payment") would (i) constitute a "parachute payments" payment" within the meaning of Section 280G 2800 of the Code, Internal Revenue Code of 1986, as amended (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 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: (A) 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 (B) payment of such benefits only a pa1i 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 of subject to the Code. Excise Tax. (b) If a Reduced Payment is made pursuant to this Section 12, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) 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 payable to Executive. In the event that acceleration of vesting of Equity Award compensation from Executive's equity awards is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant grant. (c) The independent registered public accounting firm engaged by the Company as of Executive's Equity Awards. In no event will the Executive have any discretion day prior to the effective date of the Change in Control shall make all determinations required to be made under this Section 12. 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 Company shall appoint a nationally recognized independent registered public accounting firm to make the 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. (d) 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 within thirty (30) calendar days after the date on which Executive's right to a Payment is triggered (if requested at that time by the Company's independent public accountants immediately prior to a Change of Control Company or Executive) or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and time as requested by the Company. For purposes of making If 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 independent registered public accounting firm determines that no Excise Tax is payable with respect to a 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 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 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 Se...ction 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 or any stockholder be liable to Executive have for any discretion amounts not paid as a result of the operation of this Section 4. (a) 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 make the determinations required hereunder. The Company shall bear all expenses with respect to the ordering determinations by such professional firm required to be made hereunder. If the professional firm determines that no Excise Tax is payable with respect to the Transaction Payment, either before or after the application of payment reductions. Unless the Reduced Amount, it shall furnish the Company and Executive otherwise agree in writing, any determination required under this Section 5 with detailed supporting calculations of its determinations that no Excise Tax will be made in writing by the Company's independent public accountants immediately prior imposed with respect 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, Transaction Payment. Any good faith interpretations concerning the application of Sections 280G and 4999 determinations of the Code. The professional firm made hereunder shall be final, binding and conclusive upon 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 (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 b...y 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 make the determinations required hereunder. The Company shall bear all expenses with respect to the ordering 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 4. Executive within 15 calendar days after the date on which Executive's right to a Transaction Payment is triggered or such other time as reasonably requested by the Company or Executive. If the professional firm determines that no Excise Tax is payable with respect to the Transaction Payment, either before or after the application of payment reductions. Unless the Reduced Amount, it shall furnish the Company and Executive otherwise agree in writing, any determination required under this Section 5 with detailed supporting calculations of its determinations that no Excise Tax will be made in writing by the Company's independent public accountants immediately prior imposed with respect 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, Transaction Payment. Any good faith interpretations concerning the application of Sections 280G and 4999 determinations of the Code. The professional firm made hereunder shall be final, binding and conclusive upon 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
