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 Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax impose...d by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will such Payment shall either be either: (a) (i) delivered in full, or (b) (ii) delivered as to such lesser extent which would result in no portion of such benefits Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, largest payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of the Code. If The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Executive within fifteen (15) calendar days after the date on which Executive's right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. -3- Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered pursuant to a lesser extent, reduction this Section 6 will occur in the following order: (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. In the event that acceleration of vesting of Equity Award compensation is other benefits payable 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. Executive. View More
Limitation on Payments. In (a) If any payment or benefit that Executive would receive from the event that Company or any other party whether in connection with the severance and other benefits provided for provisions in this Agreement or otherwise payable to Executive (the "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 impos...ed by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will the Payment shall be either: (a) delivered in full, equal to the Best Results Amount. The "Best Results Amount" shall be either (x) the full amount of the Payment or (b) delivered as to such (y) a lesser extent which amount that would result in no portion of such benefits the Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing those amounts, taking into account the applicable federal, state and local employment taxes, income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive Executive's receipt, 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. greater amount. If a reduction in severance and other payments or benefits constituting "parachute payments" parachute payments is necessary so that benefits are delivered to a lesser extent, the Payment equals the Best Results Amount, reduction will shall 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 stock awards; reduction of employee benefits. In the event that acceleration of vesting of Equity Award stock award compensation is to be reduced, such the 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 equity awards unless Executive elects in writing a different order for cancellation. Executive shall be solely responsible for the payment of all personal tax liability that is incurred as a result of the payments and benefits received under this Agreement, and Executive have shall not be reimbursed by the Company for any discretion with respect of those payments of personal tax liability. (b) The Company shall select a professional services firm to make all of the ordering of payment reductions. Unless determinations required to be made under this Section 6 relating to parachute payments. The Company shall request that firm provide detailed supporting calculations both to 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 the date on which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon event that triggers the Payment occurs if administratively feasible, or subsequent to that date if events occur that result in parachute payments to Executive and the Company. at that time. For purposes of making the calculations required by this Section 5, hereunder relating to parachute payments, the Firm firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations determinations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will shall furnish to the Firm such firm any information and documents as 6 the Firm firm may reasonably request in order to make a determination under this Section. hereunder relating to parachute payments. The Company will shall bear all costs the Firm firm may reasonably incur in connection with any calculations contemplated hereunder relating to parachute payments. Any determination by this Section 5. the firm shall be binding upon the Company and Executive, and the Company shall have no liability to Executive for the determinations of the firm. View More
Limitation on Payments. In the event (a) Reduction of Severance Benefits. If any payment or benefit that the severance and Executive would receive from any Company Group member or any other benefits provided for party whether in this Agreement connection with the provisions herein or otherwise payable to Executive (the "Payment") would (i) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would sentence, be subject to the excise tax imposed ...by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 such Payment will be either: (a) delivered in full, equal to the Best Results Amount. The "Best Results Amount" will be either (x) the full amount of such Payment or (b) delivered as to (y) such lesser extent which amount as would result in no portion of such benefits the Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive Executive's receipt, 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. greater amount. If a reduction in severance and other payments or benefits constituting "parachute payments" parachute payments is necessary so that benefits are delivered to a lesser extent, the Payment equals the Best Results Amount, reduction will occur in the following order: (i) reduction of cash payments; cancellation payments, which shall occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and event triggering such excise tax will be the first cash payment to be reduced; (ii) reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled equity awards, which shall occur in the reverse order of the date of grant for such stock awards (i.e., the vesting of Executive's Equity Awards. the most recently granted stock awards will be reduced first); and (iii) reduction of other benefits paid or provided to the Executive, which shall occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced. If more than one equity award was made to the Executive on the same date of grant, all such awards shall have their acceleration of vesting reduced pro rata. In no event will shall the Executive have any discretion with respect to the ordering of payment reductions. Unless The Executive will be solely responsible for the payment of all personal tax liability that is incurred as a result of the payments and benefits received under the Agreement, and the Executive will not be reimbursed by any member of the Company Group for any such payments. (b) Determination of Excise Tax Liability. The Company will select a professional services firm to make all of the determinations required to be made under these paragraphs relating to parachute payments. The Company will request that such firm provide detailed supporting calculations both to the Company and the 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 the date on which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon event that triggers the Payment occurs if administratively feasible, or subsequent to such date if events occur that result in parachute payments to the Executive and the Company. at that time. For purposes of making the calculations required by this Section 5, under these paragraphs relating to parachute payments, the Firm firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations determinations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Firm firm such information and documents as the Firm firm may reasonably request in order to make a determination under this Section. these paragraphs relating to parachute payments. The Company will bear all costs the Firm firm may reasonably incur in connection with any calculations contemplated by this Section 5. these paragraphs relating to parachute payments. Any such determination by the firm will be binding upon the Company and the Executive, and the Company will have no liability to the Executive for the determinations of the firm. View More
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax impose...d by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will such Payment shall either be either: (a) (i) delivered in full, full or (b) (ii) delivered as to such lesser extent which would result in no portion of such benefits Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and payroll taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, largest payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of the Code. If The accounting firm engaged by the Company for general audit purposes as of the day prior to the Termination Date or, in the event such accounting firm is precluded from performing calculations hereunder, such other accounting firm of national reputation as may be determined by the Company, and reasonably acceptable to Executive, shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Executive within fifteen (15) calendar days after the date on which Executive's right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered pursuant to a lesser extent, reduction this Section 9 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 (with the later vesting reduced first) (3) cancellation of accelerated vesting of stock options (with the later vesting reduced first) and (4) reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is other benefits payable to be reduced, Executive or any such acceleration of vesting will be cancelled in the reverse other 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 determined by the Company and Executive otherwise agree that will not result in writing, any determination required adverse tax consequences 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 409A of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.View More
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax impose...d by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will such Payment shall either be either: (a) (i) delivered in full, full or (b) (ii) delivered as to such lesser extent which would result in no portion of such benefits Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and payroll taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive on an after-tax after- tax basis, of the greatest amount of benefits, largest payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of the Code. If The accounting firm engaged by the Company for general audit purposes as of the day prior to the Termination Date or, in the event such accounting firm is precluded from performing calculations hereunder, such other accounting firm of national reputation as may be determined by the Company, and reasonably acceptable to Executive, shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Executive within fifteen (15) calendar days after the date on which Executive's right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered pursuant to a lesser extent, reduction this Section 8 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 (with the later vesting reduced first) (3) cancellation of accelerated vesting of stock options (with the later vesting reduced first) and (4) reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is other benefits payable to be reduced, Executive or any such acceleration of vesting will be cancelled in the reverse other 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 determined by the Company and Executive otherwise agree that will not result in writing, any determination required adverse tax consequences 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 409A of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.View More
Limitation on Payments. In (a) If any payment or benefit that Executive would receive from the event that Company or any other party whether in connection with the severance and other benefits provided for provisions in this Agreement or otherwise payable to Executive (the "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 impos...ed by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will the Payment shall be either: (a) delivered in full, equal to the Best Results Amount. The "Best Results Amount" shall be either (x) the full amount of the Payment or (b) delivered as to such (y) a lesser extent which amount that would result in no portion of such benefits the Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing those amounts, taking into account the applicable federal, state and local employment taxes, income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive Executive's receipt, 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. greater amount. If a reduction in severance and other payments or benefits constituting "parachute payments" parachute payments is necessary so that benefits are delivered to a lesser extent, the Payment equals the Best Results Amount, reduction will shall 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 stock awards; reduction of employee benefits. In the event that acceleration of vesting of Equity Award stock award compensation is to be reduced, such the 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 equity awards unless Executive elects in writing a different order for cancellation. Executive shall be solely responsible for the payment of all personal tax liability that is incurred as a result of the payments and benefits received under this Agreement, and Executive have shall not be reimbursed by the Company for any discretion with respect of those payments of personal tax liability. (b) The Company shall select a professional services firm to make all of the ordering of payment reductions. Unless determinations required to be made under this Section 6 relating to parachute payments. The Company shall request that firm provide detailed supporting calculations both to 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 the date on which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon event that triggers the Payment occurs if administratively feasible, or subsequent to that date if events occur that result in parachute payments to Executive and the Company. at that time. For purposes of making the calculations required by this Section 5, hereunder relating to parachute payments, the Firm firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations determinations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will shall furnish to the Firm such firm any information and documents as the Firm firm may reasonably request in order to make a determination under this Section. hereunder relating to parachute payments. The Company will shall bear all costs the Firm firm may reasonably incur in connection with any calculations contemplated hereunder relating to parachute payments. Any determination by this Section 5. the firm shall be binding upon the Company and Executive, and the Company shall have no liability to Executive for the determinations of the firm. View More
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax impose...d by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will such Payment shall either be either: (a) (i) delivered in full, or (b) (ii) delivered as to such lesser extent which would result in no portion of such benefits Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, largest payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of the Code. If The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the -2- Change in Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Executive within fifteen (15) calendar days after the date on which Executive's right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered pursuant to a lesser extent, reduction this Section 5 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. In the event that acceleration of vesting of Equity Award compensation is other benefits payable 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. 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, would be subject to the excise tax imposed by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will this Agreement shall be either: (a) delivered in full, full or (b) delivered as to such lesser extent which would resu...lt in no portion of such benefits being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), "Accountants"), whose determination will shall be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. Section 5. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. In the event that a reduction is required, the reduction shall be applied beginning with benefits which have the lowest present value to the Executive. -4- 5. Section 409A; Delayed Commencement of Benefits. The parties intend that this Agreement shall be interpreted to comply with or be exempt from Section 409A of the Code, and the regulations and guidance promulgated thereunder to the extent applicable (collectively "Code Section 409A"), and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. If Executive is deemed to be a "specified employee" within the meaning of that term under Code Section 409A(a)(2)(B on the Termination Date, then with regard to any payment or the provision of any benefit that is considered nonqualified deferred compensation under Code Section 409A payable on account of Executive's "separation from service" within the meaning of Code Section 409A, such payment or benefit shall be made or provided at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the Termination Date, and (ii) the date of Executive's death (the "Delay Period"). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 6 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed on the first business day following the expiration of the Delay Period to Executive in a lump sum with interest during the Delay Period at the prime rate, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. For purposes of Code Section 409A, Executive's right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. 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, and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax imposed by Section 4999 -3- of the Code, Code (the "Excise Tax..."), then Executive's benefits under Section 3 will such Payment shall either be either: (a) (i) delivered in full, or (b) (ii) delivered as to such lesser extent which would result in no portion of such benefits Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, largest payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of the Code. If The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Executive within fifteen (15) calendar days after the date on which Executive's right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered pursuant to a lesser extent, reduction this Section 6 will occur in the following order: (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. In the event that acceleration of vesting of Equity Award compensation is other benefits payable 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. Executive. View More
Limitation on Payments. In a. Reduction of Severance Benefits. If any payment or benefit that Employee would receive from the event that Company (or any successor) or any other party whether in connection with the severance and other benefits provided for provisions in this Agreement or otherwise payable to Executive (the "Payment") would (i) constitute a "parachute payments" payment" within the meaning of Code Section 280G of the Code, 280G, 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 Executive's benefits under Section 3 the Payment will be either: (a) delivered in full, equal to the Best Results Amount. The "Best Results Amount" will be either (x) the full amount of the Payment, or (b) delivered as to such (y) a lesser extent which amount that would result in no portion of such benefits the Payment being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing those amounts, taking into account the applicable federal, state and local employment taxes, income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive Employee's receipt, 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. greater amount. If a reduction in severance and other payments or benefits constituting "parachute payments" parachute payments is necessary so that benefits are delivered to a lesser extent, the Payment equals the Best Results Amount, reduction will occur in the following order: (A) 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); (B) cancellation of Equity Awards equity awards that were granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled 280G in the reverse order of the date of grant of Executive's Equity Awards. the awards (that is, the most recently granted equity awards will be cancelled first); (C) reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the awards (that is, the vesting of the most recently granted equity awards will be cancelled first); and (D) reduction of employee benefits in reverse chronological order (that is, the benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first benefit to be reduced). In no event will the Executive Employee have any discretion with respect to the ordering of Payment reductions. Employee will be solely responsible for the payment reductions. of all personal tax liability that is incurred as a result of the payments and benefits received under this Agreement, and Employee will not be reimbursed, indemnified, or held harmless by the Company (or any successor) for any of those payments of personal tax liability. b. Determination of Excise Tax Liability. Unless the Company and Executive Parties otherwise agree in writing, any determination the Company will select a professional services firm (the "Firm") to make all determinations 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 22, which the parties mutually agree (the "Firm"), whose determination determinations will be conclusive and binding upon Executive and the Company. Parties for all purposes. For purposes of making the calculations required by this Section 5, 22, 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 Parties will furnish to the Firm such information and documents as the Firm reasonably may reasonably request in order to make a determination determinations under this Section. Section 22. The Company will bear the costs and make all costs payments for the Firm may incur Firm's services in connection with any calculations contemplated by this Section 5. 22. The Company will have no liability to Employee for the determinations of the Firm. View More
