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 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, 11, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 3 8 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such severance ...benefits being subject to 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 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. 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; cancellation payments, which will 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 equity awards, which will be cancelled 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 will 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 will have their acceleration of vesting reduced pro rata. 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 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 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. View More
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, 11, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 3 8 will be either: (a) delivered in full, or -7- (b) delivered as to such lesser extent which would result in no portion of such severa...nce 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 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. 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; cancellation payments, which will 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 equity awards, which will be cancelled 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 will 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 will have their acceleration of vesting reduced pro rata. 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 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 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. View More
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, 12, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 3 8 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which 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 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. 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; cancellation payments, which will 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 equity awards, which will be cancelled 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 will 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 will have their acceleration of vesting reduced pro rata. In no event will the Executive have any discretion with respect to the ordering of payment reductions. -8- Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 12 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, 12, 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 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. 12. View More
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, 9, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 3 6 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such severance b...enefits being subject to 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 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. 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; 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 9 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, 9, 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 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. 9. View More
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, 9, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's 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 severance ben...efits 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 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 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 severance 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; and (3) reduction of continued employee benefits. 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. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing equity awards. A nationally recognized certified professional services firm selected by the Company, the Company's independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will "Firm") shall perform the foregoing calculations related to the Excise Tax. The Company shall bear all expenses with respect to the determinations by the Firm required to be conclusive and binding upon Executive and the Company. made hereunder. For purposes of making the calculations required by this Section 5, Section, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code 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 Firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company will bear all costs and Executive within fifteen (15) calendar days after the date on which Executive's right to the severance benefits or other payments is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the Firm may incur in connection made hereunder shall be final, binding, and conclusive upon the Company and Executive. -8- 10. Confidential Information. Executive agrees to continue to comply with any calculations contemplated by this Section 5. the Company's Confidential Information and Invention Assignment Agreement (the "Confidential Information Agreement") Executive previously executed. View More
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, 4, would be subject to the excise tax imposed by Section 4999 of the Code, then then, at the election of Executive, Executive's severance benefits under Section 3 2 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would resu...lt 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 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. 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 4 will be made in writing by the Company's independent public accountants immediately prior to a Change of in Control or such other person or entity to which a national accounting firm 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, 4, 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 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. 4. Any reduction in payments and/or benefits required by this Section 4 shall occur in a manner necessary to provide Executive with the greatest economic benefit. If more than one manner of reduction of payments or benefits yields the greatest economic benefit, the payments and benefits shall be reduced pro rata. To the extent required to avoid a violation of Section 409A of the Code, in no event will the Company or Executive exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 4. View More
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, 7, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's benefits under Section 3 4 will be either: (a) either:(a) delivered in full, or (b) or(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, whichever 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: (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 awards granted "contingent on a change in ownership or control" within (within the meaning of Code Section 280G; cancellation 280G), (iii) reduction of the 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 full-value equity awards in the reverse order of the date of grant of Executive's Equity Awards. the awards (i.e., the vesting of the most recently granted full-value awards will be cancelled first); (iv) reduction of the accelerated vesting of stock options and stock appreciation rights in the reverse order of date of grant of the awards (i.e., the vesting of the most recently granted awards will be cancelled first); and (v) reduction of employee benefits in reverse chronological order (i.e., 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 have any discretion with respect to the ordering of payment reductions. Unless and only to the extent the Company and Executive otherwise agree in writing, any determination required under this Section 5 7 will be made in writing by a nationally recognized accounting firm (the "Firm") reasonably agreed upon between 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"), parties, 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, 7, 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 7. The Company will bear all costs for payment of the Firm may incur Firm's services in connection with any calculations contemplated by this Section 5. 7. View More
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 Code Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Code Section 4999 of the Code, 4999, then Executive's severance benefits under Section 3 will be either: 8 (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 excise tax under Code Section 4999 of the Code, 4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Code Section 4999, results in the receipt by 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 Code Section 4999. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 4 will be made in writing by the Company's independent public accountants immediately prior to Change of Control (the "Accountants"), whose determination will be conclusive and binding upon Executive and the Code. Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999. The Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 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; outplacement benefits; reduction of severance and pro-rata bonus; 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 acceleration; 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. COBRA continuation coverage. View More
Limitation on Payments. In the event that the severance and other benefits provided for in under this Agreement Plan or otherwise payable to Executive a Participant (i) constitute "parachute payments" within the meaning of Section 280G of the Code, and (ii) but for this Section 5, 9, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's the Participant's benefits under Section 3 this Plan will be either: (a) delivered in 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, 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 the Participant on an after-tax basis, 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; (ii) cancellation of Equity Awards awards granted "contingent on a change in ownership or control" within (within the meaning of Code Section 280G; 280G of the Code); (iii) cancellation of accelerated vesting of Equity Awards; and (iv) 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 the Participant'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 Any determination required under this Section 5 9 will be made in writing by the Company's independent public accountants immediately prior to a Change of in Control, the Company's legal advisors immediately prior to a Change 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 the Participant and the Company. For purposes of making the calculations required by this Section 5, 9, 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 the Participant 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 9. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5. 9. View More
Limitation on Payments. In the event that the severance payments and other benefits provided for in this Agreement or otherwise other payments and benefits payable or provided 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, then Executive's payments and benefits under Section 3 this Agreement or other payments or benefits (the "280G Amounts") will 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 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, 280G Amounts, notwithstanding that all or some portion of such benefits the 280G Amounts may be taxable under Section 4999 of the Code. If (a) Reduction Order. In the event that a reduction of 280G Amounts is being made in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, accordance with this Section 5, the reduction will occur occur, with respect to the 280G Amounts considered parachute payments within the meaning of Section 280G of the Code, 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 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 280G 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 have any discretion with respect to the ordering of payment reductions. payments. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a nationally recognized accounting or valuation firm (the "Firm") selected 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"), Company, 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. The Company will bear all costs and make all payments for the Firm may incur in connection with Firm's services relating to any calculations contemplated by this Section 5. View More
