Section 280G Clause Example with Variations from Business Contracts

Section 280G. (a) In the event that the Company Holdco and its affiliates undergoes a "change change in ownership or control" control at a time when it (or any affiliate of the Company, including Holdco, that would be treated, together with Holdco, as a single corporation under Section 280G of the Code and the regulations thereunder) has stock that is readily tradeable on an established securities market (within the meaning of Section 280G of the Code and the regulations and guidance promulgated thereunder... ("Section 280G")) and thereunder), if all, or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the "Total Payments"), Holdco and its affiliates, could constitute an "excess parachute payment" within the meaning of Section 280G, 280G of the Code, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion thereof shall fail to be tax deductible under Section 280G of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G Code (the "Limited Amount"), or (ii) if the amount of otherwise payable hereunder, together with the Total Payments other payments or benefits the Executive is so entitled to receive, (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the "Excise Tax") and the amount of all other applicable federal, state and local taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount of the Total Payments otherwise payable without regard to clause (i). hereunder. If it is determined that the Limited Amount will maximize the Employee's Executive's after-tax proceeds, the Total Payments payments and benefits shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, payments, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, and (iii) third, finally, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, benefits, with all such reductions done on a pro rata basis. 12 (b) All determinations made pursuant this Section 14 11 will be made at Holdco's expense by the independent public accounting firm most recently serving as the Company's outside auditors or its Affiliates' expense by an such other accounting or benefits consulting group or firm as Holdco may designate. Such accounting firm or consulting group other designated preparer engaged to make the determinations hereunder shall provide its calculations, together with experience in performing calculations regarding all supporting documentation, to Holdco and Executive as soon as reasonably practicable following the applicability of Section 280G and Section 4999 of the Code selected by the Company for date such purpose (the "Independent Advisors"). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the excess amount shall be returned immediately by the Executive to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the additional amount shall be paid immediately by the Company, or any Affiliate of the Company, as applicable, to the Executive. determinations are completed. View More

Section 280G. (a) In the event that the Company Holdco or PGA Holdings undergoes a "change in ownership or control" (within the meaning of Section 280G of the Code) after Holdco, PGA Holdings or any affiliate of Holdco or PGA Holdings (including the Company) that would be treated, together with Holdco or PGA Holdings, as a single corporation under Section 280G of the Code and the regulations thereunder has stock that is readily tradeable on an established securities market or otherwise (within the meaning of... Section 280G of the Code and guidance promulgated thereunder ("Section 280G")) the regulations thereunder) and all, or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive Employee receives or is entitled to receive from Holdco, the Company or PGA Holdings (collectively, the "Total Payments"), could constitute an "excess parachute payment" within the meaning of Section 280G, 280G of the Code, then the Executive Employee shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G of the Code (the "Limited Amount"), or (ii) if the amount of the Total Payments (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the "Excise Tax") and the amount of all other applicable federal, state and local taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount of the Total Payments otherwise payable without regard to clause (i). If it is determined that the Limited Amount will maximize the Employee's after-tax proceeds, the Total Payments shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, 409A of the Code, (ii) second, by reducing other payments and benefits that are exempt from Section 409A of the Code and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, (iii) third, by reducing all remaining payments and benefits that are exempt from Section 409A of the Code and (iv) finally, by reducing payments and benefits that are subject to Section 409A, 409A of the Code, in each case, with all such reductions done on a pro rata basis. 12 (b) All determinations made pursuant this Section 14 25 will be made at the Company's PGA Holdings' or its Affiliates' affiliates' expense by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section Sections 280G and Section 4999 of the Code selected by the Company PGA Holdings for such purpose (the "Independent Advisors"). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company PGA Holdings and its legal advisors, (y) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually 18 rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, 25, the excess amount shall be returned immediately by the Executive Employee to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, 25, the additional amount shall be paid immediately by Holdco, the Company, PGA Holdings or any Affiliate affiliate of Holdco, the Company, Company or PGA Holdings, as applicable, to the Executive. Employee. [The remainder of this page is intentionally left blank.] View More

Section 280G. (a) In the event that the Company undergoes a "change in ownership or control" (within the meaning of Section 280G of the Code and the regulations and guidance promulgated thereunder ("Section 280G")) and If all, or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the "Total Payments"), could or an affiliate, would constitute an "excess... parachute payment" within the meaning of Section 280G, 280G of the Code, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion thereof shall fail to be tax deductible under Section 280G of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G Code (the "Limited Amount"), or (ii) if the amount of the Total Payments otherwise payable hereunder (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the "Excise Tax") and the amount of all other applicable federal, state and local taxes (with employment and income taxes all (all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by Amount, the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount of the Total Payments otherwise payable without regard to clause (i). hereunder. If it is determined that the Limited Amount will maximize the Employee's Executive's after-tax proceeds, the Total Payments payments and benefits shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, payments, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, and (iii) third, finally, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, benefits, with all such reductions done on a pro rata basis. 12 (b) All determinations made pursuant this Section 14 10 will be made by a nationally recognized accounting firm at the Company's or its Affiliates' expense by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by the Company for such purpose (the "Independent Advisors"). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the excess amount shall be returned immediately by the Executive to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the additional amount shall be paid immediately by the Company, or any Affiliate of the Company, as applicable, to the Executive. expense. View More

Section 280G. (a) In the event that the Company undergoes a "change in ownership or control" (within the meaning of Section 280G of the Code and the regulations and guidance promulgated thereunder ("Section 280G")) and If all, or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the "Total Payments"), could or an affiliate, would constitute an "excess... parachute payment" within the meaning of Section 280G, 280G of the Code, then the Executive shall be entitled to receive (i) (a) an amount limited (to the minimum extent necessary) so that no portion thereof shall fail to be tax deductible under Section 280G of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G Code (the "Limited Amount"), or (ii) (b) if the amount of the Total Payments otherwise payable hereunder (without regard to clause (i)) (a)) reduced by the excise tax imposed by Section 4999 of the Code (the "Excise Tax") and the amount of all other applicable federal, state and local taxes (with employment and income taxes all (all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by Amount, the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount of the Total Payments otherwise payable without regard to clause (i). hereunder. If it is determined that the Limited Amount will maximize the Employee's Executive's after-tax proceeds, the Total Payments payments and benefits shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, payments, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, and (iii) third, finally, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, benefits, with all such reductions done on a pro rata basis. 12 (b) All determinations made pursuant this Section 14 will be made by a nationally recognized accounting firm at the Company's or its Affiliates' expense by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by the Company for such purpose (the "Independent Advisors"). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the excess amount shall be returned immediately by the Executive to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the additional amount shall be paid immediately by the Company, or any Affiliate of the Company, as applicable, to the Executive. expense. View More

Section 280G. (a) In the event that the Company undergoes a "change change in ownership or control" control after it (or any affiliate of the Company, including Holdco, that would be treated, together with the Company, as a single corporation under Section 280G of the Code and the regulations thereunder) has stock that is readily tradeable on an established securities market (within the meaning of Section 280G of the Code and the regulations and guidance promulgated thereunder ("Section 280G")) and thereunder), if all, or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the "Total Payments"), or an affiliate, could constitute an "excess parachute payment" within the meaning of Section 280G, 280G of the Code, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion thereof shall fail to be tax deductible under Section 280G of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G Code (the "Limited Amount"), or (ii) if the amount of the Total Payments otherwise payable hereunder (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the "Excise Tax") and the amount of all other applicable federal, state and local -10- taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount of the Total Payments otherwise payable without regard to clause (i). hereunder. If it is determined that the Limited Amount will maximize the Employee's Executive's after-tax proceeds, the Total Payments payments and benefits shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, payments, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, and (iii) third, finally, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, benefits, with all such reductions done on a pro rata basis. 12 (b) All determinations made pursuant this Section 14 11 will be made at the Company's or its Affiliates' expense by an the independent public accounting firm most recently serving as the Company's outside auditors or such other accounting or benefits consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by or firm as the Company for such purpose (the "Independent Advisors"). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the excess amount shall be returned immediately by the Executive to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the additional amount shall be paid immediately by the Company, or any Affiliate of the Company, as applicable, to the Executive. may designate. View More

Section 280G. (a) In the event that the Company undergoes a "change change in ownership or control" control after it (or any affiliate of the Company, including Holdco, that would be treated, together with the Company, as a single corporation under Section 280G of the Code and the regulations thereunder) has stock that is readily tradeable on an established securities market (within the meaning of Section 280G of the Code and the regulations and guidance promulgated thereunder ("Section 280G")) and thereunder), if all, or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the "Total Payments"), or an affiliate, could constitute an "excess parachute payment" within the meaning of Section 280G, 280G of the Code, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion thereof shall fail to be tax deductible under Section 280G of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G Code (the "Limited Amount"), or (ii) if the amount of the Total Payments otherwise payable hereunder (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the "Excise Tax") and the amount of all other applicable federal, state and local taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount of the Total Payments otherwise payable without regard to clause (i). hereunder. If it is determined that the -10- Limited Amount will maximize the Employee's Executive's after-tax proceeds, the Total Payments payments and benefits shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, payments, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, and (iii) third, finally, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, benefits, with all such reductions done on a pro rata basis. 12 (b) All determinations made pursuant this Section 14 11 will be made at the Company's or its Affiliates' expense by an the independent public accounting firm most recently serving as the Company's outside auditors or such other accounting or benefits consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by or firm as the Company for such purpose (the "Independent Advisors"). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the excess amount shall be returned immediately by the Executive to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the additional amount shall be paid immediately by the Company, or any Affiliate of the Company, as applicable, to the Executive. may designate. View More

Section 280G. (a) In the event that the Company undergoes a "change change in ownership or control" control after it (or any affiliate of the Company, including Holdco, that would be treated, together with the Company, as a single corporation under Section 280G of the Code and the regulations thereunder) has stock that is readily tradeable on an established securities market (within the meaning of Section 280G of the Code and the regulations and guidance promulgated thereunder ("Section 280G")) and thereunder), if all, or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the "Total Payments"), or an affiliate, could constitute an "excess parachute payment" within the meaning of Section 280G, 280G of the Code, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion thereof shall fail to be tax deductible under Section 280G of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G Code (the "Limited Amount"), or (ii) if the amount of the Total Payments otherwise payable hereunder (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the "Excise Tax") and the amount of all other applicable federal, state and local -9- taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount of the Total Payments otherwise payable without regard to clause (i). hereunder. If it is determined that the Limited Amount will maximize the Employee's Executive's after-tax proceeds, the Total Payments payments and benefits shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, payments, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, and (iii) third, finally, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, benefits, with all such reductions done on a pro rata basis. 12 (b) All determinations made pursuant this Section 14 11 will be made at the Company's or its Affiliates' expense by an the independent public accounting firm most recently serving as the Company's outside auditors or such other accounting or benefits consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by or firm as the Company for such purpose (the "Independent Advisors"). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the excess amount shall be returned immediately by the Executive to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the additional amount shall be paid immediately by the Company, or any Affiliate of the Company, as applicable, to the Executive. may designate. View More

Section 280G. (a) In the event that the Company undergoes a "change change in ownership or control" control at a time when it (or any affiliate of the Company, including Holdco, that would be treated, together with the Company, as a single corporation under Section 280G of the Code and the regulations thereunder) has stock that is readily tradeable on an established securities market (within the meaning of Section 280G of the Code and the regulations and guidance promulgated thereunder ("Section 280G")) and thereunder), if all, or any portion, of -11- the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the "Total Payments"), or an affiliate, could constitute an "excess parachute payment" within the meaning of Section 280G, 280G of the Code, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion thereof shall fail to be tax deductible under Section 280G of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G Code (the "Limited Amount"), or (ii) if the amount of otherwise payable hereunder, together with the Total Payments other payments or benefits the Executive is so entitled to receive, (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the "Excise Tax") and the amount of all other applicable federal, state and local taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount of the Total Payments otherwise payable without regard to clause (i). hereunder. If it is determined that the Limited Amount will maximize the Employee's Executive's after-tax proceeds, the Total Payments payments and benefits shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, payments, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, and (iii) third, finally, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, benefits, with all such reductions done on a pro rata basis. 12 (b) All determinations made pursuant this Section 14 11 will be made at the Company's or its Affiliates' expense by an the independent public accounting firm most recently serving as the Company's outside auditors or such other accounting or benefits consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by or firm as the Company for such purpose (the "Independent Advisors"). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the excess amount shall be returned immediately by the Executive to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the additional amount shall be paid immediately by the Company, or any Affiliate of the Company, as applicable, to the Executive. may designate. View More

Section 280G. (a) In the event that the Company undergoes a "change change in ownership or control" control at a time when it (or any affiliate of the Company, including Holdco, that would be treated, together with the Company, as a single corporation under Section 280G of the Code and the regulations thereunder) has stock that is readily tradeable on an established securities market (within the meaning of Section 280G of the Code and the regulations and guidance promulgated thereunder ("Section 280G")) and thereunder), if all, or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the "Total Payments"), or an affiliate, could constitute an "excess parachute payment" within the meaning of Section 280G, 280G of the Code, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion thereof shall fail to be tax deductible under Section 280G of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G Code (the "Limited Amount"), or (ii) if the amount of otherwise payable hereunder, together with the Total Payments other payments or benefits the Executive is so entitled to receive, (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the "Excise Tax") and the amount of all other applicable federal, state and local taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount of the Total Payments otherwise payable without regard to clause (i). hereunder. If it is determined that the Limited Amount will maximize the Employee's Executive's after-tax proceeds, the Total Payments payments and benefits shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, payments, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, and (iii) third, finally, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, benefits, with all such reductions done on a pro rata basis. 12 (b) All determinations made pursuant this Section 14 11 will be made at the Company's or its Affiliates' expense by an the independent public accounting firm most recently serving as the Company's outside auditors or such other accounting or benefits consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by or firm as the Company for such purpose (the "Independent Advisors"). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the excess amount shall be returned immediately by the Executive to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the additional amount shall be paid immediately by the Company, or any Affiliate of the Company, as applicable, to the Executive. may designate. View More

Section 280G. (a) In the event that the Company undergoes a "change change in ownership or control" control after it (or any affiliate of the Company, including Holdco, that would be treated, together with the Company, as a single corporation under Section 280G of the Code and the regulations thereunder) has stock that is readily tradeable on an established securities market (within the meaning of Section 280G of the Code and the regulations and guidance promulgated thereunder ("Section 280G")) and thereunder), if all, or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the "Total Payments"), or an affiliate, could constitute an "excess parachute payment" within the meaning of Section 280G, 280G of the Code, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion thereof shall fail to be tax deductible under Section 280G of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G Code (the "Limited Amount"), or (ii) if the amount of the Total Payments otherwise payable hereunder (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the "Excise Tax") and the amount of all other applicable federal, state and local taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount of the Total Payments otherwise payable without regard to clause (i). hereunder. If it is determined that the Limited Amount will maximize the Employee's Executive's after-tax proceeds, the Total Payments payments and benefits shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, payments, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, and (iii) third, finally, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, benefits, with all such reductions done on a pro rata basis. 12 (b) All determinations made pursuant this Section 14 11 will be made at the Company's or its Affiliates' expense by an the independent public accounting firm most recently serving as the Company's outside auditors or such other accounting or benefits consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by or firm as the Company for such purpose (the "Independent Advisors"). For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the excess amount shall be returned immediately by the Executive to the Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and intent of this Section 14, the additional amount shall be paid immediately by the Company, or any Affiliate of the Company, as applicable, to the Executive. may designate. View More