Certain Change in Control Payments. Notwithstanding any provision of this Agreement to the contrary, if any payments or benefits the Executive would receive from the Company under this Agreement or otherwise in connection with the Change in Control (the “Total Payments”) # constitute “parachute payments” within the meaning of Section 280G of the Code, and # but for this Section 27, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive will be entitled to receive either # the full amount of the Total Payments or # a portion of the Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is defined in [Section 280G(b)(3)(A)] of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by such employee on an after-tax basis, of the greatest portion of the Total Payments. Any determination required under this Section 27 shall be made in writing by the accountant or tax counsel selected by the Executive. If there is a reduction pursuant to this Section 27 of the Total Payments to be delivered to the applicable Executive and to the extent that an ordering of the reduction other than by the Executive is required by [Section 22] or other tax requirements, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the same time of payment, such “parachute payments” shall be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Section 280G of the Code and the denominator of which is the actual present value of such payment.
CertainParachute Payments. If any payment or benefit (including payments and benefits pursuant to this Agreement) that Executive would receive in connection with a Change in Control Payments. Notwithstanding any provision of this Agreement to the contrary, if any payments or benefits the Executive would receive from the Company under this Agreement or otherwiseother event that constitutes a change in connection withownership or control within the Change in Control (the “Total Payments”meaning of Section 280G of the Code and the regulations thereunder (in either case, a “[[Unknown Identifier]] Event” and any such payment or benefit, a “Transaction Payment”) would # constitute a “parachute payments”payment” within the meaning of Section 280G of the Code, and # but for this Section 27, wouldsentence, be subject to the excise tax imposed by Section 4999 of the Code,Code (the “Excise Tax”), then Executive willthe Company shall cause to be entitled to receive either # the full amountdetermined, before any amounts of the Total Payments or # a portionTransaction Payment are paid to Executive, which of the Total Payments having a value equal to $1 less than three (3) times such individual’following two alternative forms of payment would result in Executive’s “base amount” (as such term is defined in [Section 280G(b)(3)(A)] of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by such employeereceipt, on an after-tax basis, of the greatestgreater amount of Transaction Payments notwithstanding that all or some portion of the Total Payments. Any determination required under thisTransaction Payment may be subject to the Excise Tax: # payment in full of the entire amount of the Transaction Payments (a “Full Payment”), or # payment of only a portion of the Transaction Payments so that Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account all applicable federal, state, local and foreign income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, # Executive shall have no rights to any additional payments and/or benefits constituting the forfeited portion of the Full Payment, and # reduction in payments and/or benefits will occur in the manner that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. Notwithstanding the foregoing, if such reduction would result in any portion of the Transaction Payments being subject to penalties pursuant to Section 27409A of the Code that would not otherwise be subject to such penalties, then the reduction method shall be made in writing bymodified so as to avoid the accountant or tax counsel selected by the Executive. If there is a reductionimposition of penalties pursuant to this Section 27409A of the TotalCode as follows: # Transaction Payments to be delivered to the applicable Executive and to the extent that an ordering of the reduction other than by the Executive is required by [Section 22] or other tax requirements, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments”are contingent on future events (e.g., being terminated without Cause), shall be reduced based(or eliminated) before Transaction Payments that are not contingent on future events; and # Transaction Payments that are “deferred compensation” within the timemeaning of paymentSection 409A of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the same time of payment, such “parachute payments”Code shall be reduced on a pro rata basis (but(or eliminated) before Transaction Payments that are not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof,deferred compensation within the term “Parachute Payment Ratio” shall mean a fraction the numeratormeaning of which is the valueSection 409A of the applicable “parachute payment” for purposesCode. In the event that acceleration of Section 280Gvesting of any equity compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the Code anddate of grant of Executive’s equity awards. In no event will the denominatorCompany or any stockholder be liable to Executive for any amounts not paid as a result of which is the actual present valueoperation of such payment.this provision.
Certain Change in Control Payments. NotwithstandingIf any provision of this Agreement to the contrary, if any paymentspayment or benefits thebenefit Executive would receive from the Company under this AgreementAgreement, when combined with any other payment or otherwise in connection with thebenefit Executive receives pursuant to a Change inof Control (the “Total Payments”(for purposes of this section, a “Payment”) would: # constitute a “parachute payments”payment” within the meaning of Section 280G of[Section 280G] the Code,Code; and # but for this Section 27, wouldsentence, be subject to the excise tax imposed by Section 4999 of the Code,Code (the “Excise Tax”), then Executive willsuch Payment shall be entitled to receive eithereither: # the full amount of the Total Paymentssuch Payment; or # asuch lesser amount (with cash payments being reduced before stock option compensation) as would result in no portion of the Total Payments having a value equalPayment being subject to $1 less than three (3) times such individual’s “base amount” (as such term is defined in [Section 280G(b)(3)(A)]the Excise Tax, whichever of the Code), whichever of (i) and (ii), afterforegoing amounts, taking into account the applicable federal, state,state and local employments taxes, income taxestaxes, and the excise tax imposed by Section 4999 of the Code,Excise Tax, results in the receipt by such employeeExecutive’s receipt, on an after-tax basis, of the greatestgreater amount of the Payment notwithstanding that all or some portion of the Total Payments. Any determination required under this Section 27 shallPayment may be made in writing by the accountant or tax counsel selected by the Executive. If there is a reduction pursuant to this Section 27 of the Total Payments to be deliveredsubject to the applicable Executive and to the extent that an ordering of the reduction other than by the Executive is required by [Section 22] or other tax requirements, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the same time of payment, such “parachute payments” shall be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Section 280G of the Code and the denominator of which is the actual present value of such payment.Excise Tax.
CertainIn the event that any payment received or to be received by the Executive in connection with a Change in Control Payments. Notwithstanding any provisionof the Company or the termination of the Executive’s employment (whether payable pursuant to the terms of this Agreement toor any other plan, arrangement or agreement with the contrary, ifCompany, any payments or benefits the Executive would receive fromperson whose actions result in a change in control of the Company under this Agreement or otherwise in connectionany person affiliated with the Change in Control (theCompany or such person (together with the Severance Payment, the “Total Payments”, and each a “Payment”)) # constitutewould be treated as “parachute payments” within the meaning ofunder Section 280G of the Code,Code and #would, but for this Section 27, wouldsection, be subject to the excise tax imposed by Section 4999 of the Code,Internal Revenue Code of 1986, as amended (the “Code”), or any corresponding provisions of state or local tax laws, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, is hereinafter collectively referred to as (the “Excise Tax”)), then Executive willprior to making any Total Payments, a calculation shall be entitled to receive eithermade comparing # the full amountNet Benefit (as defined below) to the Executive of the Total Payments orafter payment of the Excise Tax, to # athe Net Benefit to the Executive if the Total Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under # above is less than the amount under # above will the Total Payments be reduced to the minimum extent necessary to ensure that no portion of the Total Payments having ais subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value equal to $1 less than three (3) times such individual’s “base amount” (as such term is defined in [Section 280G(b)(3)(A)] of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by such employee on an after-tax basis, of the greatest portion of the Total Payments. Any determination required under this Section 27 shall be made in writing by the accountant or tax counsel selected by the Executive. If there is a reduction pursuant to this Section 27 of the Total Payments tonet of all federal, state, local, foreign income, employment and excise taxes. The reduction of the amounts payable under this Agreement, if applicable, shall be delivered tomade by reducing taxable payments before non-taxable payments, and payments nearest in time before payments later in time, unless an alternative method of reduction is elected by the applicable Executive and to the extent that an orderingconsistent with Section 409A of the reductionCode. For purposes of reducing the Total Payments to the Reduced Amount, only amounts payable under this Agreement (and no other than by the Executive is required by [Section 22] or other tax requirements, the payment reduction contemplated by the preceding sentencePayments) shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the same time of payment, such “parachute payments” shall be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Section 280G of the Code and the denominator of which is the actual present value of such payment.reduced.
Certain Change in Control Payments.Parachute Payment Limitation. Notwithstanding anything to the contrary contained herein, if payment of all or any provisionportion of any severance payments to the Executive pursuant to Section 3(f) of this Agreement to the contrary, if any payments or benefits the Executive(the Severance Payments) would receive from the Company under this Agreement or otherwise in connection with the Change in Control (the “Total Payments”) # constitute “parachute payments” within the meaning of Section 280G of the Code, and # but for this Section 27, would beCode render any payments or other benefits to the Executive in the nature of compensation subject to the excise tax imposed by Section 4999 of the Code, then Executive will be entitled to receive either # the full amount of the Total PaymentsCode or # a portion of the Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is defined in [Section 280G(b)(3)(A)] of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by such employee on an after-tax basis, of the greatest portion of the Total Payments. Any determination requirednondeductible under this Section 27 shall be made in writing by the accountant or tax counsel selected by the Executive. If there is a reduction pursuant to this Section 27 of the Total Payments to be delivered to the applicable Executive and to the extent that an ordering of the reduction other than by the Executive is required by [Section 22] or other tax requirements, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the same time of payment, such “parachute payments” shall be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Section 280G of the Code, then the Severance Payments shall be reduced to an amount such that the Severance Payments and any other amount or amounts otherwise payable in connection with the Change of Control by the Company or by any person whose relationship to the Company is such as to require attribution of stock ownership between the parties under Section 318(a) of the Code upon the occurrence of the Change of Control and which are includible in the denominatorcomputation of which isparachute payments under Section 280G of the actual present valueCode, does not exceed 2.99 times the base amount as defined in Section 280G of such payment.the Code, provided that the foregoing reduction shall not take place if, prior to the Change of Control, the Severance Payments shall have been approved, in a vote satisfying the requirements of Section 280G(b)(5) of the Code, by persons who own, immediately before the Change of Control, more than 75% of the voting power of all outstanding capital stock of the Company.
CertainThe Total Change in Control Payments. Notwithstanding any provision of this Agreement to the contrary, if any payments or benefits the Executive would receive from the Company under this Agreement or otherwise in connection with the Change in Control (the “Total Payments”) # constitute “parachute payments”Payments shall be treated as "parachute payments" within the meaning of Section 280G280G(b)(2) of the Code, and # but for thisall "excess parachute payments" within the meaning of Section 27, would280G(b)(1) of the Code shall be treated as subject to the excise tax imposed by Section 4999 ofExcise Tax, unless, and except to the Code, then Executive will be entitled to receive either # the full amount of the Total Payments or # a portion of the Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is defined in [Section 280G(b)(3)(A)] of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, resultsextent that, in the receipt by such employee on an after-tax basis,written opinion of the greatest portionindependent compensation consultants, counsel or auditors of the Total Payments. Any determination required under this Section 27 shall be made in writing by the accountant or tax counselnationally recognized standing ("Independent Advisors") selected by the Executive. If there is a reduction pursuant to this Section 27 ofCompany, the Total Change in Control Payments to be delivered to(in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the applicable Executive and to the extent that an ordering of the reduction other than by the Executive is required by [Section 22] or other tax requirements, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the same time of payment, such “parachute payments” shall be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposesmeaning of Section 280G280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax. You will be provided a copy of any such written opinion, and all fees and expenses of the denominator of which isIndependent Advisors shall be borne solely by the actual present value of such payment.Company.
Certain Change in Control Payments. NotwithstandingGolden Parachute Tax. In the event that any provision of this Agreement to the contrary, if any paymentspayments, entitlements or benefits the Executive would receive from the Company under(whether made or provided pursuant to this Agreement or otherwise in connection with the Change in Control (the “Total Payments”) #otherwise) provided to Executive constitute “parachute payments” within the meaning of Section 280G of the Code, and # but for this Section 27, wouldInternal Revenue Code (“Code”), may be subject to thean excise tax imposed bypursuant to Section 4999 of the Code, thenthen, Executive willshall be entitled to receive either # the full amount of the Total Payments or # a portion of the Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is defined in [Section 280G(b)(3)(A)] of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by such employeegreater of, as determined on an after-tax basis, ofbasis (taking into account any such excise tax), # such parachute payments or # the greatest portionreduced amount of the Total Payments.such parachute payments as would result in no amount of such parachute payments being subject to such excise tax. Any determination required under this Section 27 shall be made in writing by the accountant or tax counsel selected by the Executive. If there is a reduction pursuant to this Section 27 of the Total Payments to be delivered to the applicable Executive and to the extent that an ordering of the reduction other than by the Executive is required by [Section 22] or other tax requirements, thesuch payment reduction contemplated by the preceding sentence shall be implemented as follows: first, by determiningreducing any payments to be made to Executive under paragraph 4(a)(ii)(B) or 4(b)(ii)(B) hereof, as applicable; second, by reducing any other cash payments to be made to Executive but only if the “Parachute Payment Ratio” (as defined below)value of such cash payments is not greater than the parachute value of such payments; third, by cancelling the acceleration of vesting of any outstanding equity-based compensation awards that are subject to performance vesting, the performance goals for which were met as of Executive’s date of termination or if later the date of the occurrence of the change in control; fourth, by cancelling the acceleration of vesting of any restricted stock or restricted stock unit awards; fifth, by eliminating the Company’s payment of the cost of any post-termination continuation of medical and dental benefits for Executive and his eligible dependents and sixth, by cancelling the acceleration of vesting of any stock options or stock appreciation rights. In the case of the reductions to be made pursuant to each “parachute payment”of the above-mentioned clauses, the payment and/or benefit amounts to be reduced and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments”acceleration of vesting to be cancelled shall be reduced based onor cancelled in the timeinverse order of their originally scheduled dates of payment or vesting, as applicable, and shall be so reduced # only to the extent that the payment and/or benefit otherwise to be paid or the vesting of the award that otherwise would be accelerated, would be treated as a “parachute payment” within the meaning of [Section 280G(b)(2)(A)] of the Code, and # only to the extent necessary to achieve the required reduction hereunder. The determination of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratioafter-tax amount under clauses (i) and the same time of payment, such “parachute payments”(ii), above, shall be reduced onmade by a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof,nationally recognized certified public accounting firm that is selected by the term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment”Company and for purposes of Section 280G ofpresent valuing any such payments under Treasury Regulation 1.280G-1 Q&A 32, the Code anddiscount rate to be used shall be the denominator of which isapplicable Federal rate as in effect on the actual present value of such payment.Effective Date.
CertainNotwithstanding the foregoing, if the Company is privately held as of immediately prior to a Change in Control Payments. Notwithstanding any provision of this Agreement to the contrary, if any payments or benefits the Executive would receive fromand it is deemed necessary by the Company under this Agreement or otherwise in connection with the Change in Control (the “Total Payments”) # constitute “parachute payments” within the meaning of Section 280Gto avoid any potential imposition of the Code,adverse tax results provided for by Sections 280G and # but for this Section 27, would be subject to the excise tax imposed by Section 4999 of the Code, then as a further condition to any payment or benefit provided for in this Agreement or otherwise, the Company may request Executive will be entitled to receive either #consider in good faith submitting any payment or benefit provided for in this Agreement or from any other source that the full amountCompany reasonably determines may constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Total Payments or # a portionCode) for approval by the Company’s stockholders prior to the closing of the Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is definedChange in Control in the manner required by the terms of [Section 280G(b)(3)5)(A)B)] of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes andCode, so that no payments or benefits will be deemed to constitute a “parachute payment” subject to the excise tax imposed by Sectiontaxes under Sections 280G and 4999 of the Code, results in the receipt by such employee on an after-tax basis, of the greatest portion of the Total Payments. Any determination required under this Section 27 shall be made in writing by the accountant or tax counsel selected by the Executive. If there is a reduction pursuant to this Section 27 of the Total Payments to be delivered to the applicable Executive and to the extent that an ordering of the reduction other than by the Executive is required by [Section 22] or other tax requirements, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the same time of payment, such “parachute payments” shall be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Section 280G of the Code and the denominator of which is the actual present value of such payment.Code.
CertainBest After Tax. If any payment or benefit Executive would receive pursuant to a Change in Control Payments. Notwithstanding any provision of this Agreement to the contrary, if any payments or benefits the Executive would receive from the Company under this Agreement or otherwise in connection with the Change in Control (the “Total Payments”(Payment) would # constitute “parachute payments”a parachute payment within the meaning of Section 280G of the Code,Internal Revenue Code of 1986, as amended (the Code), and # but for this Section 27, wouldsentence, be subject to the excise tax imposed by Section 4999 of the Code,Code (the Excise Tax), then Executive willsuch Payment shall be entitledreduced to receivethe Reduced Amount. The Reduced Amount shall be either # the full amount of the Total Payments or # alargest portion of the Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is definedPayment that would result in [Section 280G(b)(3)(A)]no portion of the Code),Payment being subject to the Excise Tax or # the largest portion, up to and including the total, of the Payment, whichever of (i) and (ii),amount, after taking into account all applicable federal, state,state and local employment taxes, income taxestaxes, and the excise tax imposed by Section 4999 ofExcise Tax (all computed at the Code,highest applicable marginal rate), results in the receipt by such employeeExecutives receipt, on an after-tax basis, of the greatestgreater amount of the Payment notwithstanding that all or some portion of the Total Payments. Any determination required under thisPayment may be subject to the Excise Tax. If a reduction in payments and/or benefits constituting parachute payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: reduction of current cash payments; reduction of deferred cash payments subject to Code Section 27409A; cancellation of accelerated vesting of stock options; cancellation of accelerated vesting of stock awards other than stock options; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be madecancelled in writing by the accountant or tax counsel selected by the Executive. If there is a reduction pursuant to this Section 27reverse order of the Total Payments to be delivered to the applicable Executive and to the extent that an orderingdate of the reduction other than by the Executive is required by [Section 22] or other tax requirements, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the timegrant of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the same time of payment, such “parachute payments” shall be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Section 280G of the Code and the denominator of which is the actual present value of such payment.Executives stock awards.
Certain Change#280G Provisions. Notwithstanding anything in Control Payments. Notwithstanding any provision of this Agreement to the contrary, if any paymentspayment or benefits thedistribution Executive would receive from the Company underpursuant to this Agreement or otherwise in connection with the Change in Control (the “Total Payments”(“Payment”) would # constitute a “parachute payments”payment” within the meaning of Section 280G of the Code, and # but for this Section 27, wouldsentence, be subject to the excise tax imposed by Section 4999 of the Code,Code (the “Excise Tax”), then Executive willsuch Payment shall either be entitled# delivered in full, or # delivered as to receive either #such lesser extent which would result in no portion of such Payment being subject to the full amountExcise Tax, whichever of the Total Payments or # a portion of the Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is defined in [Section 280G(b)(3)(A)] of the Code), whichever of (i) and (ii), afterforegoing amounts, taking into account the applicable federal, state,state and local income taxes and the excise tax imposed by Section 4999 of the Code,Excise Tax, results in the receipt by such employeeExecutive on an after-tax basis, of the greatestlargest payment, notwithstanding that all or some portion of the Total Payments.Payment may be taxable under Section 4999 of the Code. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any determination required under this Section 27good faith determinations of the accounting firm made hereunder shall be madefinal, binding and conclusive upon the Company and Executive. Any reduction in writing by the accountant payments and/or tax counsel selected by the Executive. If there is a reductionbenefits pursuant to this Section 274.2 will occur in the following order: # reduction of the Total Payments to be delivered to the applicable Executive and to the extent that an orderingcash payments; # cancellation of the reductionaccelerated vesting of equity awards other than by the Executive is required by [Section 22] orstock options; # cancellation of accelerated vesting of stock options; and # reduction of other tax requirements, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the same time of payment, such “parachute payments” shall be reduced on a pro rata basis (but not below zero) priorbenefits payable to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Section 280G of the Code and the denominator of which is the actual present value of such payment.Executive.
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