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 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 3. 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 of payment reductions. Unless determinations by such professional firm required to be made hereunder. (b) 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 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 of payment reductions. Unless determinations by such professional firm required to be made hereunder. (b) 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 fifteen (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 4. 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 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 of payment reductions. Unless determinations by such professional firm required to be made hereunder. (b) 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 fifteen (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 distribution 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 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: (x) 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 (y) payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax. (b) If a Reduced Payment is made pursuant to this Section 8, (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 for general audit purposes 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 8. 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 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 -4- and Executive within 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 Executive) or such other time as requested by the Company or Executive. If the independent registered public accounting firm determines that no Excise Tax is payable with respect to a 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 an opinion reasonably acceptable to Executive 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, Payment. Any good faith interpretations concerning the application of Sections 280G and 4999 determinations of the Code. The accounting 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) 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 ("Payment") would (i) 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) 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: (x) 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 (y) payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax. (b) If a Reduced Payment is made pursuant to this Section 8, (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 for general audit purposes 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 8. 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 15 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 time as requested by the Company or entity Executive. If the independent registered public accounting 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 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 4 opinion reasonably acceptable to Executive that no Excise Tax will furnish be imposed with respect to such Payment. Any good faith determinations of the Firm such information accounting firm made hereunder shall be final, binding and documents as conclusive upon the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5. and Executive. View More
Limitation on Payments. In (a) 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 im...posed by Section 4999 of the Code, Code (the "Excise Tax"), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive's benefits under Section 3 will be either: (a) delivered after-tax proceeds: (i) payment in full, full of the entire amount of the Payment (a "Full Payment"), or (b) delivered as to such lesser extent which would result in no portion (ii) payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax. (b) If a Reduced Payment is made pursuant to this Section 6, (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. -6- (c) The independent registered public accounting firm engaged by the Company for general audit purposes 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 of the Company shall make all determinations required to be made under this Section 6. 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 15 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 time as requested by the Company or entity Executive. If the independent registered public accounting 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 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 Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax impose...d by Section 4999 of the Code, Code (the "Excise Tax"), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive's benefits under Section 3 will be either: (a) delivered after-tax proceeds: (i) payment in full, full of the entire amount of the Payment (a "Full Payment"), or (b) delivered as to such lesser extent which would result in no portion (ii) payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax. (a) If a Reduced Payment is made pursuant to this Section 5, (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. (b) The independent registered public accounting firm engaged by the Company for general audit purposes 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 5. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the Change in Control, the 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 -7- to the ordering of payment reductions. Unless determinations by such independent registered public accounting firm required to be made hereunder. (c) 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 15 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 time as requested by the Company or entity Executive. If the independent registered public accounting 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 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 of payment reductions. Unless determinations by such professional firm required to be made hereunder. (b) 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 4. 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 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 im...posed by Section 4999 of the Code, Code (the "Excise Tax"), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive's benefits under Section 3 will be either: (a) delivered after-tax proceeds: (i) payment in full, full of the entire amount of the Payment (a "Full Payment"), or (b) delivered as to such lesser extent which would result in no portion (ii) payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax. (b) If a Reduced Payment is made pursuant to this Section 5, (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 5 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 for general audit purposes 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 of the Company shall make all determinations required to be made under this Section 5. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the change in control, the 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 15 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 time as requested by the Company or entity Executive. If the independent registered public accounting 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 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 (a) 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 ("Payment") would (i) 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) 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 part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), whichever of the -6- 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 5, (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 5. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the Change in Control, the 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
