Limitation on Payments Clause Example from Business Contracts

Limitation on Payments. 5.1 General. In the event that the payments and benefits (the "Payments") paid or provided to Executive under this Agreement or otherwise (a) constitute "parachute payments" within the meaning of Section 280G of the Code ("Section 280G"), and (b) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code ("Section 4999"), then the Payments shall be either (x) delivered in full, or (y) delivered as to such lesser extent which would result in no portion of the P...ayments being subject to excise tax under Section 4999, 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 the Payments, notwithstanding that all or some portion of the Payments may be taxable under Section 4999. The provisions of this Section 5 shall apply if, at the time of any change in ownership or control of VICI REIT (within the meaning of Section 280G), VICI REIT is an entity whose stock is readily tradable on an established securities market (or otherwise), within the meaning of Section 280G. - 11 - 5.2 Accountants' Determinations. Unless VICI REIT, the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing by VICI REIT's independent public accountants (the "Accountants") immediately prior to the transaction described in Section 280G(b)(2)(A)(i) of the Code, whose determination shall be conclusive and binding upon Executive, VICI REIT and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and Section 4999. VICI REIT, the Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. If a reduction in the Payments constituting "parachute payments" as defined in Section 280G is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (a) reduction of the cash payments and (b) cancellation of accelerated vesting of equity awards. In the event that the accelerated vesting of equity awards is to be cancelled, such vesting acceleration shall be cancelled in the reverse chronological order of Executive's equity awards' grant dates. View More