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Section 280G of the Code Clause Example with 9 Variations from Business Contracts
This page contains Section 280G of the Code 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.
Section 280G of the Code. Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Executive or for Executive's benefit pursuant to the terms of this Agreement or otherwise (the "Covered Payments") constitute parachute payments (the "Parachute Payments") within the meaning of Section 280G of the Code and would, but for this Section 20 would be subject to the excise ta...x imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the "Excise Tax"), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to the Executive of the Covered Payments after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the "Reduced Amount"). "Net Benefit" shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. (a) Any such reduction shall be made in accordance with Section 409A of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any determination required under this Section 20 shall be made in writing in good faith by the accounting firm that was the Company's independent auditor immediately before the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by the Company that is reasonably acceptable to the Executive (the "Accountants"). The Company and the Executive shall provide the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making the calculations and determinations required by this Section 20, the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Accountants' determinations shall be final and binding on the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations and selections made pursuant to this Section 20 the Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) In the event that: (A) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then the Executive shall pay any such Overpayment to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive's receipt of the Overpayment until the date of repayment. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would have otherwise been paid to the Executive until the payment date.
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Zeta Global Holdings Corp. contract
Variations of a "Section 280G of the Code" Clause from Business Contracts
Section 280G of the Code. a. Notwithstanding any other provision provisions of this Agreement offer letter, in the event that any payment or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided benefit by the Company or its affiliates otherwise to Executive or for Executive's the benefit of you, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement offer letter or otherwise (all such payments and benefits, includi...ng the payments and benefits under Sections 2.a. and 2.b., being hereinafter referred to as the "Total Payments"), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (the "Covered Payments") constitute parachute "Excise Tax"), then the Total Payments shall be reduced (in the order provided in Section 7.b.) to the minimum extent necessary to avoid the imposition of the Excise Tax on the Total Payments, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of the Excise Tax to which you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7 b. The Total Payments shall be reduced in the following order: (i) reduction on a pro-rata basis of any cash severance payments (the "Parachute Payments") within that are exempt from Section 409A of the meaning Code, (ii) reduction on a pro-rata basis any non-cash severance payments or benefits that are exempt from Section 409A of the Code, (iii) reduction on a pro-rata basis of any other payments or benefits that are exempt from Section 409A of the Code, and (iv) reduction of any payments or benefits otherwise payable to you on a pro-rata basis or such other manner that complies with Section 409A of the Code; provided, in case of clauses (ii), (iii) and (iv), that reduction of any payments attributable to the acceleration of vesting of Company equity awards shall be first applied to Company equity awards that would otherwise vest last in time. c. All determinations regarding the application of this Section 7 shall be made by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G of the Code and would, but for this Section 20 would be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the "Excise Tax"), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to the Executive of the Covered Payments after payment of the Excise Tax selected by the Company (the "Independent Advisors"). For purposes of any determination by the Independent Advisors pursuant to (ii) the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that this Section 7 .c., no portion of the Covered Total Payments is subject to shall be taken into account which, in the Excise Tax (that amount, the "Reduced Amount"). "Net Benefit" shall mean the present value opinion of the Covered Payments net Independent Advisors, (i) does not constitute a "parachute payment" within the meaning of all federal, state, local, foreign income, employment and excise taxes. (a) Any such reduction shall be made in accordance with Section 409A 280G(b)(2) of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to (including by reason of Section 409A 280G(b)(4)(A) of the Code shall be reduced first; and Code) or (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any determination required under this Section 20 shall be made in writing in good faith by constitutes reasonable compensation for services actually rendered, within the accounting firm that was the Company's independent auditor immediately before the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by the Company that is reasonably acceptable to the Executive (the "Accountants"). The Company and the Executive shall provide the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making the calculations and determinations required by this Section 20, the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application meaning of Section 280G and Section 4999 280G(b)(4)(B) of the Code. Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. The Accountants' determinations shall be final costs of obtaining such determination and binding on the Company all related fees and the Executive. The Company shall be responsible for all expenses (including related fees and expenses incurred in any later audit) shall be borne by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations and selections made pursuant to this Section 20 the Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) Company. d. In the event that: (A) it is later determined that a greater reduction in the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe has a high probability of success, that an Overpayment has Total Payments should have been made or (B) it is established pursuant to a final determination implement the objective and intent of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then this Section 7, the Executive excess amount shall pay any such Overpayment be returned immediately by you to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive's receipt of the Overpayment until the date of repayment. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would have otherwise been paid to the Executive until the payment date. Company.
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Sigilon Therapeutics, Inc. contract
Section 280G of the Code. a. Notwithstanding any other provision provisions of this Agreement offer letter, in the event that any payment or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided benefit by the Company or its affiliates otherwise to Executive or for Executive's the benefit of you, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement offer letter or otherwise (all such payments and benefits, includi...ng the payments and benefits under Sections 2.a. and 2.b., being hereinafter referred to as the "Total Payments"), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (the "Covered Payments") constitute parachute "Excise Tax"), then the Total Payments shall be reduced (in the order provided in Section 7.b.) to the minimum extent necessary to avoid the imposition of the Excise Tax on the Total Payments, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). 7 b. The Total Payments shall be reduced in the following order: (i) reduction on a pro-rata basis of any cash severance payments (the "Parachute Payments") within that are exempt from Section 409A of the meaning Code, (ii) reduction on a pro-rata basis any non-cash severance payments or benefits that are exempt from Section 409A of the Code, (iii) reduction on a pro-rata basis of any other payments or benefits that are exempt from Section 409A of the Code, and (iv) reduction of any payments or benefits otherwise payable to you on a pro-rata basis or such other manner that complies with Section 409A of the Code; provided, in case of clauses (ii), (iii) and (iv), that reduction of any payments attributable to the acceleration of vesting of Company equity awards shall be first applied to Company equity awards that would otherwise vest last in time. c. All determinations regarding the application of this Section 7 shall be made by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G of the Code and would, but for this Section 20 would be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the "Excise Tax"), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to the Executive of the Covered Payments after payment of the Excise Tax to (ii) selected by the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that Company (the "Independent Advisors"). For purposes of determinations, no portion of the Covered Total Payments is subject to shall be taken into account which, in the Excise Tax (that amount, the "Reduced Amount"). "Net Benefit" shall mean the present value opinion of the Covered Payments net Independent Advisors, (i) does not constitute a "parachute payment" within the meaning of all federal, state, local, foreign income, employment and excise taxes. (a) Any such reduction shall be made in accordance with Section 409A 280G(b)(2) of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to (including by reason of Section 409A 280G(b)(4)(A) of the Code shall be reduced first; and Code) or (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any determination required under this Section 20 shall be made in writing in good faith by constitutes reasonable compensation for services actually rendered, within the accounting firm that was the Company's independent auditor immediately before the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by the Company that is reasonably acceptable to the Executive (the "Accountants"). The Company and the Executive shall provide the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making the calculations and determinations required by this Section 20, the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application meaning of Section 280G and Section 4999 280G(b)(4)(B) of the Code. Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. The Accountants' determinations shall be final costs of obtaining such determination and binding on the Company all related fees and the Executive. The Company shall be responsible for all expenses (including related fees and expenses incurred in any later audit) shall be borne by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations and selections made pursuant to this Section 20 the Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) Company. d. In the event that: (A) it is later determined that a greater reduction in the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe has a high probability of success, that an Overpayment has Total Payments should have been made or (B) it is established pursuant to a final determination implement the objective and intent of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then this Section 7, the Executive excess amount shall pay any such Overpayment be returned immediately by you to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive's receipt of the Overpayment until the date of repayment. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would have otherwise been paid to the Executive until the payment date. Company.
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Evelo Biosciences, Inc. contract
Section 280G of the Code. Notwithstanding any other provision If there is a change of this Agreement ownership or any other plan, arrangement effective control or agreement to change in the contrary, if any ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G of the Code) (a "Change in Control") and any payment or benefit (including payments or and benefits provided or pursuant to be provided by this Agreement) that the Executive would receive from the Company or its affilia...tes to Executive or for Executive's benefit pursuant to the terms of this Agreement or otherwise (the "Covered Payments") ("Transaction Payment") would (i) constitute parachute payments (the "Parachute Payments") a "parachute payment" within the meaning of Section 280G of the Code and would, (ii) but for this Section 20 would sentence, be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the (the "Excise Tax"), then prior the Company shall cause to making be determined, before any amounts of the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) Transaction Payment are paid to the Executive Executive, which of the Covered Payments after following two alternative forms of payment would result in the Executive's receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (A) payment in full of the entire amount of the Transaction Payment (a "Full Payment"), or (B) payment of only a part of the Transaction Payment so that the Executive receives the largest payment possible without the imposition of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the (a "Reduced Amount"). "Net Benefit" shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. (a) Any such reduction shall be made in accordance with Section 409A of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any determination required under this Section 20 shall be made in writing in good faith by the accounting firm that was the Company's independent auditor immediately before the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by the Company that is reasonably acceptable to the Executive (the "Accountants"). The Company Payment"), and the Executive shall provide be entitled to payment of whichever amount shall result in a greater after-tax amount for the Accountants with such information and documents as the Accountants may reasonably request in order Executive. For purposes of determining whether to make a determination under this Section 20. For purposes of making Full Payment or a Reduced Payment, the calculations Company shall cause to be taken into account all applicable federal, state and determinations required by this Section 20, local income and employment taxes and the Accountants may rely on reasonable, good faith assumptions and approximations concerning Excise Tax (all computed at the application of Section 280G and Section 4999 highest applicable marginal rate, net of the Code. The Accountants' determinations 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, the reduction in payments and/or benefits shall be final and binding on the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations and selections made pursuant to this Section 20 the Executive will receive Covered Payments that are occur in the aggregate more than the amount 7 following order: (1) first, reduction of cash payments, in reverse order of scheduled payment date (or if necessary, to zero), (2) then, reduction of non-cash and non-equity benefits provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) In the event that: (A) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then the Executive shall pay any such Overpayment to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) Executive, on a pro rata basis (or if necessary, to zero) and (3) then, cancellation of the Code) from acceleration of vesting of equity award compensation in the reverse order of the date of grant of the Executive's receipt of the Overpayment until the date of repayment. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would have otherwise been paid to the Executive until the payment date. equity awards.
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vTv Therapeutics Inc. contract
Section 280G of the Code. a. Notwithstanding any other provision provisions of this Agreement Agreement, in the event that any payment or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided benefit by the Company or its affiliates otherwise to Executive or for Executive's the benefit of you, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and benefits, including the payments ...and benefits under Sections 2.a. and 2.b., being hereinafter referred to as the "Total Payments"), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (the "Covered Payments") constitute parachute "Excise Tax"), then the Total Payments shall be reduced (in the order provided in Section 7.b.) to the minimum extent necessary to avoid the imposition of the Excise Tax on the Total Payments, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of the Excise Tax to which you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). b. The Total Payments shall be reduced in the following order: (i) reduction on a prorata basis of any cash severance payments (the "Parachute Payments") within that are exempt from Section 409A of the meaning Code, (ii) reduction on a pro-rata basis any non-cash severance payments or benefits that are exempt from Section 409A of the Code, (iii) reduction on a pro-rata basis of any other payments or benefits that are exempt from Section 409A of the Code, and (iv) reduction of any payments or benefits otherwise payable to you on a pro-rata basis or such other manner that complies with Section 409A of the Code; provided, in case of clauses (ii), (iii) and (iv), that reduction of any payments attributable to the acceleration of vesting of Company equity awards shall be first applied to Company equity awards that would otherwise vest last in time. 7 c. All determinations regarding the application of this Section 7 shall be made by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G of the Code and would, but for this Section 20 would be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the "Excise Tax"), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to the Executive of the Covered Payments after payment of the Excise Tax to (ii) selected by the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that Company (the "Independent Advisors"}. For purposes of determinations, no portion of the Covered Total Payments is subject to shall be taken into account which, in the Excise Tax (that amount, the "Reduced Amount"). "Net Benefit" shall mean the present value opinion of the Covered Payments net Independent Advisors, (i) does not constitute a "parachute payment" within the meaning of all federal, state, local, foreign income, employment and excise taxes. (a) Any such reduction shall be made in accordance with Section 409A 280G(b)(2) of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to (including by reason of Section 409A 280G(b)(4)(A) of the Code shall be reduced first; and Code) or (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any determination required under this Section 20 shall be made in writing in good faith by constitutes reasonable compensation for services actually rendered, within the accounting firm that was the Company's independent auditor immediately before the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by the Company that is reasonably acceptable to the Executive (the "Accountants"). The Company and the Executive shall provide the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making the calculations and determinations required by this Section 20, the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application meaning of Section 280G and Section 4999 280G(b)(4)(B) of the Code. Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. The Accountants' determinations shall be final costs of obtaining such determination and binding on the Company all related fees and the Executive. The Company shall be responsible for all expenses (including related fees and expenses incurred in any later audit) shall be borne by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations and selections made pursuant to this Section 20 the Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) Company. d. In the event that: (A) it is later determined that a greater reduction in the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe has a high probability of success, that an Overpayment has Total Payments should have been made or (B) it is established pursuant to a final determination Implement the objective and intent of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then this Section 7, the Executive excess amount shall pay any such Overpayment be returned immediately by you to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive's receipt of the Overpayment until the date of repayment. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would have otherwise been paid to the Executive until the payment date. Company.
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Sigilon Therapeutics, Inc. contract
Section 280G of the Code. Notwithstanding any other provision of (a) Anything in this Agreement or any other plan, arrangement or agreement to the contrary, contrary notwithstanding, in the event it shall be determined that any Payment would cause the Executive to be subject to an Excise Tax, then the amounts payable to the Executive hereunder shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount (the reduction of the amounts payable hereunder shall be made first ou...t of payments which are not subject to Code Section 409A; and, if any necessary, then out of the payments or benefits provided or which are subject to Code Section 409A, starting with the payments which are to be provided paid on the latest future date). (b) All determinations required to be made under this Section 26, shall be made by a nationally recognized accounting firm appointed by the Company or its affiliates 15 prior to Executive or for Executive's benefit pursuant a Change of Control (the "Accounting Firm"). If the Accounting Firm determines that the Parachute Value of all Payments, in the aggregate, should be reduced to the terms Safe Harbor Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. All determinations made by the Accounting Firm under this Section 26 shall be binding upon the Company and the Executive and shall be made within 60 days of termination of employment of the Executive. Within 5 days following receipt of the Accounting Firm's determination, the Company shall pay to or distribute for the benefit of the Executive such Payments as are then due to the Executive under this Agreement and shall promptly pay to or otherwise (the "Covered Payments") constitute parachute payments (the "Parachute Payments") within distribute for the meaning of Section 280G benefit of the Code and would, but for this Section 20 would be subject Executive in the future such Payments as become due to the excise tax imposed Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, at the "Excise Tax"), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to the Executive time of the Covered Payments after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the "Reduced Amount"). "Net Benefit" shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. (a) Any such reduction shall be made in accordance with Section 409A of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any initial determination required under this Section 20 shall be made in writing in good faith by the accounting firm Accounting Firm hereunder, it is possible that was the Company's independent auditor immediately before the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected amounts will have been paid or distributed by the Company that is reasonably acceptable to or for the benefit of the Executive (the "Accountants"). The Company and the Executive shall provide the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making the calculations and determinations required by this Section 20, the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Accountants' determinations shall be final and binding on the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations and selections made pursuant to this Section 20 Agreement which should not have been so paid or distributed ("Overpayment") or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of the Executive will receive Covered Payments that are pursuant to this Agreement could have been so paid or distributed ("Underpayment"), in each case, consistent with the aggregate more than calculation of the amount provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) Safe Harbor Amount hereunder. In the event that: (A) that the Accountants determine, Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe Accounting Firm believes has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved success determines that an Overpayment has been made, then any such Overpayment paid or distributed by the Company to or for the benefit of the Executive shall pay any such Overpayment be treated for all purposes as a loan to the Executive which the Executive shall repay to the Company together with interest at the applicable federal rate (as defined provided for in Section 7872(f)(2)(A) 7872(f)(2) of the Code) from Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the date Executive to the Company if and to the extent such deemed loan and payment would neither reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Executive's receipt Code nor generate a refund of the Overpayment until the date of repayment. (ii) such taxes. In the event that: (A) that the Accountants, Accounting Firm, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will shall be promptly paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined provided for in Section 7872(f)(2)(A) 7872(f)(2) of the Code) from the date the amount would have otherwise been paid to the Executive until the payment date. Code.
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ARIZONA PUBLIC SERVICE CO contract
Section 280G of the Code. Notwithstanding any other provision (a) If there is a change of this Agreement ownership or any other plan, arrangement effective control or agreement to change in the contrary, if any ownership of a substantial portion of the assets of a corporation (within the meaning of Section 280G of the Code) and any payment or benefit (including payments or and benefits provided or pursuant to be provided by this Agreement) that the Executive would receive from the Company or its affiliates to Executive o...r for Executive's benefit pursuant to the terms of this Agreement or otherwise (the "Covered Payments") ("Transaction Payment") would (i) constitute parachute payments (the "Parachute Payments") a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, and would, (ii) but for this Section 20 would sentence, be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the (the "Excise Tax"), then prior the Company shall cause to making be determined, before any amounts of the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) Transaction Payment are paid to the Executive Executive, which of the Covered Payments after following two alternative forms of payment would result in the Executive's receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a "Full Payment") or (2) payment of only a part of the Transaction Payment so that the Executive receives the largest payment possible without the imposition of the Excise Tax (a "Reduced Payment"). For purposes of determining whether to (ii) make a Full Payment or a Reduced Payment, the Net Benefit Company shall cause to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to taken into account all applicable federal, state and local income taxes and the Excise Tax (that amount, (all computed at the "Reduced Amount"). "Net Benefit" shall mean the present value highest applicable marginal rate, net of the Covered Payments net maximum reduction in federal income taxes which could be obtained from a deduction of all federal, state, local, foreign income, employment such state and excise taxes. (a) Any such local taxes). If a Reduced Payment is made, the reduction shall be made in accordance with Section 409A payments and/or benefits will occur in the following order: (1) first, reduction of cash payments, in reverse order of scheduled payment date (or if necessary, to zero), (2) then, reduction of non-cash and non-equity benefits provided to the Executive, on a pro rata basis (or if necessary, to zero), and (3) then, cancellation of the Code acceleration of vesting of equity award compensation in the reverse order of the date of grant of the Executive's equity awards. (b) Unless the Executive and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any Company otherwise agree in writing, any determination required under this Section 20 section shall be made in writing in good faith by the accounting firm that was the Company's independent auditor immediately before public accountants (the "Accountants"), whose determination shall be conclusive and binding upon the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by Executive and the Company that is reasonably acceptable for all purposes. For purposes of making the calculations required by this section, the 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 Accountants shall provide detailed supporting calculations to the Executive (the "Accountants"). The Company and the Executive as requested by the Company or the Executive. The Executive and the Company shall provide furnish to the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations and determinations required contemplated by this Section 20, 12(b). 15 13. Assignment and Successors. The Company may assign its rights and obligations under this Agreement to any entity, including any successor to all or substantially all the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 assets of the Code. Company, by merger or otherwise, and may assign or encumber this Agreement and its rights hereunder as security for indebtedness of the Company and its Affiliates. The Accountants' determinations Executive may not assign his rights or obligations under this Agreement to any individual or entity. This Agreement shall be final binding upon and binding on inure to the benefit of the Company and the Executive. The Company shall be responsible for all fees Executive and expenses incurred by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations their respective successors, assigns, personnel, legal representatives, executors, administrators, heirs, distributees, devisees and selections made pursuant to this Section 20 the Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) legatees, as applicable. In the event that: (A) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then the Executive shall pay any such Overpayment to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive's receipt death following a termination of the Overpayment until the date of repayment. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would have his engagement, all unpaid amounts otherwise been paid due to the Executive until the payment date. (including under Section 5) shall be paid to his estate.
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Section 280G of the Code. Notwithstanding any other provision (a) If there is a change of this Agreement ownership or any other plan, arrangement effective control or agreement to change in the contrary, if any ownership of a substantial portion of the assets of a corporation (within the meaning of Section 280G of the Code) and any payment or benefit (including payments or and benefits provided or 13 pursuant to be provided by this Agreement) that the Executive would receive from the Company or its affiliates to Executiv...e or for Executive's benefit pursuant to the terms of this Agreement or otherwise (the "Covered Payments") ("Transaction Payment") would (i) constitute parachute payments (the "Parachute Payments") a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, and would, (ii) but for this Section 20 would sentence, be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the (the "Excise Tax"), then prior the Company shall cause to making be determined, before any amounts of the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) Transaction Payment are paid to the Executive Executive, which of the Covered Payments after following two alternative forms of payment would result in the Executive's receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a "Full Payment"), or (2) payment of only a part of the Transaction Payment so that the Executive receives the largest payment possible without the imposition of the Excise Tax (a "Reduced Payment"). For purposes of determining whether to (ii) make a Full Payment or a Reduced Payment, the Net Benefit Company shall cause to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (that amount, (all computed at the "Reduced Amount"). "Net Benefit" shall mean the present value highest applicable marginal rate, net of the Covered Payments net maximum reduction in federal income taxes which could be obtained from a deduction of all federal, state, local, foreign income, employment such state and excise taxes. (a) Any such local taxes). If a Reduced Payment is made, the reduction shall be made in accordance with Section 409A payments and/or benefits will occur in the following order: (1) first, reduction of cash payments, in reverse order of scheduled payment date (or if necessary, to zero), (2) then, reduction of non-cash and non-equity benefits provided to the Executive, on a pro rata basis (or if necessary, to zero), and (3) then, cancellation of the Code acceleration of vesting of equity award compensation in the reverse order of the date of grant of the Executive's equity awards. (b) Unless the Executive and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any Company otherwise agree in writing, any determination required under this Section 20 section shall be made in writing in good faith by the accounting firm that was the Company's independent auditor immediately before public accountants (the "Accountants"), whose determination shall be conclusive and binding upon the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by Executive and the Company that is reasonably acceptable for all purposes. For purposes of making the calculations required by this section, the 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 Accountants shall provide detailed supporting calculations to the Executive (the "Accountants"). The Company and the Executive as requested by the Company or the Executive. The Executive and the Company shall provide furnish to the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations and determinations required contemplated by this Section 20, the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Accountants' determinations shall be final and binding on the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations and selections made pursuant to this Section 20 the Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) In the event that: (A) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then the Executive shall pay any such Overpayment to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive's receipt of the Overpayment until the date of repayment. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would have otherwise been paid to the Executive until the payment date. 12(b).
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Section 280G of the Code. Notwithstanding any other provision (a) If there is a change of this Agreement ownership or any other plan, arrangement effective control or agreement to change in the contrary, if any ownership of a substantial portion of the assets of a corporation (within the meaning of Section 280G of the Code) and any payment or benefit (including payments or and benefits provided or pursuant to be provided by this Agreement) 15 that the Executive would receive from the Company or its affiliates to Executiv...e or for Executive's benefit pursuant to the terms of this Agreement or otherwise (the "Covered Payments") ("Transaction Payment") would (i) constitute parachute payments (the "Parachute Payments") a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986 (the "Code"), and would, (ii) but for this Section 20 would sentence, be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the (the "Excise Tax"), then prior the Company shall cause to making be determined, before any amounts of the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) Transaction Payment are paid to the Executive Executive, which of the Covered Payments after following two alternative forms of payment would result in the Executive's receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a "Full Payment"), or (2) payment of only a part of the Transaction Payment so that the Executive receives the largest payment possible without the imposition of the Excise Tax (a "Reduced Payment"). For purposes of determining whether to (ii) make a Full Payment or a Reduced Payment, the Net Benefit Company shall cause to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (that amount, (all computed at the "Reduced Amount"). "Net Benefit" shall mean the present value highest applicable marginal rate, net of the Covered Payments net maximum reduction in federal income taxes which could be obtained from a deduction of all federal, state, local, foreign income, employment such state and excise taxes. (a) Any such local taxes). If a Reduced Payment is made, the reduction shall be made in accordance with Section 409A payments and/or benefits will occur in the following order: (1) first, reduction of cash payments, in reverse order of scheduled payment date (or if necessary, to zero), (2) then, reduction of non-cash and non-equity benefits provided to the Executive, on a pro rata basis (or if necessary, to zero), and (3) then, cancellation of the Code acceleration of vesting of equity award compensation in the reverse order of the date of grant of the Executive's equity awards. (b) Unless the Executive and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any Company otherwise agree in writing, any determination required under this Section 20 section shall be made in writing in good faith by the accounting firm that was the Company's independent auditor immediately before public accountants (the "Accountants"), whose determination shall be conclusive and binding upon the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by Executive and the Company that is reasonably acceptable for all purposes. For purposes of making the calculations required by this section, the 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 Accountants shall provide detailed supporting calculations to the Executive (the "Accountants"). The Company and the Executive as requested by the Company or the Executive. The Executive and the Company shall provide furnish to the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations and determinations required contemplated by this Section 20, the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Accountants' determinations shall be final and binding on the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations and selections made pursuant to this Section 20 the Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) In the event that: (A) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then the Executive shall pay any such Overpayment to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive's receipt of the Overpayment until the date of repayment. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would have otherwise been paid to the Executive until the payment date. 12(b).
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Section 280G of the Code. Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Executive or for Executive's benefit pursuant to the terms of this Agreement or otherwise (the "Covered Payments") constitute parachute payments (the "Parachute Payments") within the meaning of Section 280G of the Code and would, but for this Section 20 would be subject to the excise ta...x imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the "Excise Tax"), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to the Executive of the Covered Payments after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the "Reduced Amount"). "Net Benefit" shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. (a) Any such reduction shall be made in accordance with Section 409A of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any determination required under this Section 20 shall be made in writing in good faith by the accounting firm that was the Company's independent auditor immediately before the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by the Company that is reasonably acceptable to the Executive (the "Accountants"). The Company and the Executive shall provide the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making the calculations and determinations required by this Section 20, the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Accountants' determinations shall be final and binding on the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accountants in connection with the calculations required by this Section 20. (c) It 21. (c)It is possible that after the determinations and selections made pursuant to this Section 20 the 21 Executive will receive Covered Payments that are in the aggregate more than the amount intended or required to be provided under after application of this Section 20 21 ("Overpayment") or less than the amount intended or required to be provided under after application of this Section 20 21 ("Underpayment"). (i) In (i)In the event that: (A) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which that the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then the Executive shall pay any such Overpayment to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive's receipt of the Overpayment until the date of repayment. (ii) In (ii)In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would should have otherwise been paid to the Executive until the payment date.
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