Limitation on Payments Clause Example with 260 Variations 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 (the "Payments") (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 benefits under Section 3 Payments will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of su...ch severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, Payments, notwithstanding that all or some portion of such benefits Payments may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits the Payments constituting "parachute payments" is necessary so that benefits are delivered no portion of such Payments 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. -9- Any good faith determinations of the Firm may incur in connection with any calculations contemplated by this Section 5. made hereunder shall be final, binding, and conclusive upon the Company and Executive. View More

Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (the "Payments") (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 benefits under Section 3 Payments will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of su...ch severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, Payments, notwithstanding that all or some portion of such benefits Payments may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits the Payments constituting "parachute payments" is necessary so that benefits are delivered no portion of such Payments 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 -8- 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 with any calculations contemplated by this Section 5. made hereunder shall be final, binding, and conclusive upon the Company and Executive. View More

Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (the "Payments") (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 benefits under Section 3 Payments will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of su...ch severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an -8- after-tax basis, of the greatest amount of benefits, Payments, notwithstanding that all or some portion of such benefits Payments may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits the Payments constituting "parachute payments" is necessary so that benefits are delivered no portion of such Payments 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 with any calculations contemplated by this Section 5. made hereunder shall be final, binding, and conclusive upon the Company and Executive. 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 and other benefits under Section 3 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 severance and other 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 and other benefits, notwithstanding that all or some portion of such severance and other benefits may be taxable under Section 4999 of the Code. If a reduction in 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 9 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"), "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 shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. Section 9. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 9. -4- In the event the Accountants determine that this Section 9 requires a reduction in Executive's severance or other benefits, the reduction will occur in the following order: reduction of cash payments; reduction of employee benefits; cancellation of accelerated vesting of equity awards; cancellation of equity awards that are considered to be contingent upon the Change of Control transaction. If Executive fails to make an appropriate reduction election within the reasonable time period determined by the Board, in its sole discretion, the order of reduction shall be determined by the Board. View More

Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (the "Payments") (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 benefits under Section 3 Payments will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of su...ch severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, Payments, notwithstanding that all or some portion of such benefits Payments may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits the Payments constituting "parachute payments" is necessary so that benefits are delivered no portion of such Payments 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 with any calculations contemplated by this Section 5. made hereunder shall be final, binding, and conclusive upon the Company and Executive. 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, 4, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's severance benefits under Section 3 3(a) will be either: (a) delivered in full, or -4- (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 severance and other 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 that were granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation 280G (if two or more Equity Awards are granted on the same date, each award will be reduced on a pro-rata basis); (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 Awards in the reverse order of the date of grant of Executive's the awards (i.e., the vesting of the most recently granted Equity Awards. Awards will be cancelled first and if more than one Equity Award was made to Executive on the same date of grant, all such awards will have their acceleration of vesting reduced pro rata); and (iv) 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 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 Control or such other person or entity to which the parties mutually agree (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 incur in connection with any calculations contemplated by this Section 5. 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, Internal Revenue Code of 1986, as amended (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 severance benefits under Section 3 7 will be either: (a) delivered in full, or (b) delivered as to such lesser extent wh...ich 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, 4999 of the Code, 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 9 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"), "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. Section 9. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 9. Any reduction in payments and/or benefits required by this Section 9 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive's equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. 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, 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; (i) cancellation of Equity Awards awards granted "contingent on a change in ownership or control" within (within the meaning of Code Section 280G; 280G); (ii) a pro rata reduction of (A) cash payments that are subject to Section 409A as deferred compensation and (B) cash payments not subject to Section 409A of the Code; (iii) a pro rata reduction of (A) employee benefits that are subject to Section 409A as deferred compensation and (B) employee benefits not subject to Section 409A; and (iv) a pro rata cancellation of (A) accelerated vesting of Equity Awards; Awards that are subject to Section 409A as deferred compensation and reduction of employee benefits. (B) Equity Awards not subject to Section 409A. In the event that acceleration of vesting of Equity Award compensation Awards is to be reduced, cancelled, 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 5 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 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 (a)delivered in full, or (b) delivered (b)delivered as to such lesser extent which would result in no por...tion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance 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 severance payments under Sections 7(a)(i) or 7(a)(ii); (2) reduction of other cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; payments, if any; (3) cancellation of accelerated vesting of Equity Awards; equity awards; and (4) 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. equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. In no event will shall the Executive have any discretion with respect to the 4 ordering of payment reductions. Notwithstanding the foregoing, to the extent the Company submits any payment or benefit payable to Executive under this Agreement or otherwise to the Company's stockholders for approval in accordance with Treasury Regulation Section 1.280G-1 Q&A 7, the foregoing provisions shall not apply following such submission and such payments and benefits will be treated in accordance with the results of such vote, except that any reduction in, or waiver of, such payments or benefits required by such vote will be applied without any application of discretion by Executive and in the order prescribed by this Section 9. 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 an independent public accountants firm 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. Company for all purposes. 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 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 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 -4- 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 severance payments under Sections 7(a)(i) or 7(a)(ii); (2) reduction of other cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; payments, if any; (3) cancellation of accelerated vesting of Equity Awards; equity awards; and (4) 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. equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. In no event will shall the Executive have any discretion with respect to the ordering of payment reductions. Notwithstanding the foregoing, to the extent the Company submits any payment or benefit payable to Executive under this Agreement or otherwise to the Company's stockholders for approval in accordance with Treasury Regulation Section 1.280G-1 Q&A 7, the foregoing provisions shall not apply following such submission and such payments and benefits will be treated in accordance with the results of such vote, except that any reduction in, or waiver of, such payments or benefits required by such vote will be applied without any application of discretion by Executive and in the order prescribed by this Section 9. 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 an independent public accountants firm 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. Company for all purposes. 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 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 reasonably incur in connection with any calculations contemplated by this Section 5. 9. View More