Parachute 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 from the Company or other event that constitutes a change in ownership or control within the 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 payment” within the meaning of Section 280G of the Code, and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Transaction Payment are paid to Executive, which of the following two alternative forms of payment would result in Executive’s receipt, on an after-tax basis, of the greater amount of Transaction Payments notwithstanding that all or some portion of the Transaction 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 409A of the Code that would not otherwise be subject to such penalties, then the reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A of the Code as follows: # Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and # Transaction Payments that are “deferred compensation” within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A of the Code. In the event that acceleration of vesting of any equity compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision.
ParachuteCertain Change in Control Payments. IfNotwithstanding any paymentprovision of this Agreement to the contrary, if any payments or benefit (including payments and benefits pursuant to this Agreement) thatthe Executive would receive from the Company under this Agreement or otherwise in connection with athe Change in Control from the Company or other event that constitutes a change in ownership or control within the 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”(the “Total Payments”) would # constitute a “parachute payment”payments” within the meaning of Section 280G of the Code, and # but for this sentence,Section 27, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”),Code, then Executive will be entitled to receive either # the Company shall cause to be determined, before any amountsfull amount of the Transaction Payment are paid to Executive, whichTotal Payments or # a portion of the following two alternative formsTotal 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 payment would resultthe 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 Executive’s receipt,the receipt by such employee on an after-tax basis, of the greater amount of Transaction Payments notwithstanding that all or somegreatest portion of the Transaction Payment mayTotal Payments. Any determination required under this Section 27 shall be subjectmade 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 Excise Tax: # payment in fullapplicable Executive and to the extent that an ordering of the entire amountreduction 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 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”). Forapplicable “parachute 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 409A280G of the Code that would not otherwise be subject toand the denominator of which is the actual present value of such penalties, then the reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A of the Code as follows: # Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and # Transaction Payments that are “deferred compensation” within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A of the Code. In the event that acceleration of vesting of any equity compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision.payment.
Parachute Payments.Best After Tax. If any payment or benefit (including payments and benefits pursuant to this Agreement) that Executive would receive in connection withpursuant to a Change in Control from the Company or other event that constitutesotherwise (Payment) would # constitute a change in ownership or controlparachute payment within the meaning of Section 280G of the Internal Revenue 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 payment” within the meaning of Section 280G of the Code,1986, as amended (the Code), and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”Excise Tax), then such Payment shall be reduced to the CompanyReduced Amount. The Reduced Amount shall cause to be determined, before any amountseither # the largest portion of the Transaction Payment are paid to Executive, which of the following two alternative forms of paymentthat would result in Executive’no portion of the Payment being subject to the Excise Tax or # the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executives receipt, on an after-tax basis, of the greater amount of Transaction Paymentsthe Payment notwithstanding that all or some portion of the Transaction 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).Tax. 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 willconstituting parachute payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the manner that results in the greatest economic benefit for Executive. If more than one methodfollowing order: reduction of current cash payments; 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 beingdeferred cash payments subject to penalties pursuant toCode Section 409A409A; cancellation of the Code that would not otherwise be subject to such penalties, then theaccelerated vesting of stock options; cancellation of accelerated vesting of stock awards other than stock options; reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A of the Code as follows: # Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and # Transaction Payments that are “deferred compensation” within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A of the Code.employee benefits. In the event that acceleration of vesting of any equitystock award compensation awards is to be reduced, such acceleration of vesting willshall be cancelled in the reverse order of the date of grant of Executive’Executives equitystock awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision.
Parachute Payments. If any payment or benefit (including payments and benefits pursuant to this Agreement) that Executive would receive in connectionunder this Agreement, when combined with any other payment or benefit Executive receives pursuant to a Change inof Control from the Company or other event that constitutes(for purposes of this section, a change in ownership or control within the 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”“Payment”) wouldwould: # constitute a “parachute payment” within the meaning of Section 280G of[Section 280G] the Code,Code; and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either: # the Company shall cause to be determined,full amount of such Payment; or # such lesser amount (with cash payments being reduced before any amountsstock option compensation) as would result in no portion of the Transaction Payment are paidbeing subject to Executive, whichthe Excise Tax, whichever of the following two alternative forms of payment would resultforegoing amounts, taking into account the applicable federal, state and local employments taxes, income taxes, and the Excise Tax, results in Executive’s receipt, on an after-tax basis, of the greater amount of Transaction Paymentsthe Payment notwithstanding that all or some portion of the Transaction 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 409A of the Code that would not otherwise be subject to such penalties, then the reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A of the Code as follows: # Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and # Transaction Payments that are “deferred compensation” within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A of the Code. In the event that acceleration of vesting of any equity compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision.Tax.
Parachute Payments. If#280G Provisions. Notwithstanding anything in this Agreement to the contrary, if any payment or benefit (including payments and benefitsdistribution Executive would receive pursuant to this Agreement) that Executive would receive in connection with a Change in Control from the CompanyAgreement or other event that constitutes a change in ownership or control within the 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 otherwise (“Payment”) would # constitute a “parachute payment” within the meaning of Section 280G of the Code, and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Companysuch Payment shall causeeither be # delivered in full, or # delivered as to be determined, before any amounts of the Transaction Payment are paid to Executive,such lesser extent which of the following two alternative forms of payment would result in Executive’s receipt,no portion of such Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the greater amount of Transaction Paymentslargest payment, notwithstanding that all or some portion of the Transaction Payment may be subjecttaxable under Section 4999 of the Code. The accounting firm engaged by the Company for general audit purposes as of the day prior to the Excise Tax: # payment in fulleffective date of the entire amountChange 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 good faith determinations 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,accounting firm made hereunder shall be final, binding and conclusive upon 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 #Executive. Any reduction in payments and/or benefits pursuant to this Section 4.2 will occur in the manner that results in the greatest economic benefit for Executive. If morefollowing order: # reduction of cash payments; # cancellation of accelerated vesting of equity awards other than one methodstock options; # cancellation 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 portionaccelerated vesting of the Transaction Payments being subject to penalties pursuant to Section 409A of the Code that would not otherwise be subject to such penalties, then the reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A of the Code as follows: # Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events;stock options; and # Transaction Payments that are “deferred compensation” within the meaningreduction of Section 409A of the Code shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A of the Code. In the event that acceleration of vesting of any equity compensation awards isother benefits payable to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision.Executive.
Parachute Payments. IfIn the event that any payment received or benefit (including payments and benefits pursuant to this Agreement) thatbe received by the Executive would receive in connection with a Change in Control fromof the Company or the termination of the Executive’s employment (whether payable pursuant to the terms of this Agreement or any other event that constitutesplan, arrangement or agreement with the Company, any person whose actions result in a change in ownershipcontrol of the Company or control withinany person affiliated with the meaning ofCompany or such person (together with the Severance Payment, the “Total Payments”, and each a “Payment”)) would be treated as “parachute payments” under 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 payment” within the meaning of Section 280G of the Code, and #would, but for this sentence,section, be subject to the excise tax imposed by Section 4999 of the 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 prior to making any Total Payments, a calculation shall be made comparing # the Company shall causeNet Benefit (as defined below) to be determined, before any amountsthe Executive of the Transaction Payment are paid to Executive, whichTotal Payments after payment of the following two alternative forms of payment would result in Executive’s receipt, on an after-tax basis, ofExcise Tax, to # the greater amount of TransactionNet Benefit to the Executive if the Total Payments notwithstanding that all or some portion ofare limited to the Transaction Payment may beextent necessary to avoid being subject to the Excise Tax:Tax. Only if the amount calculated under # payment in full ofabove is less than the entire amount ofunder # above will the TransactionTotal Payments (a “Full Payment”), or # payment of only abe reduced to the minimum extent necessary to ensure that no portion of the TransactionTotal Payments so that Executive receives the largest payment possible without the imposition ofis subject to the Excise Tax (a(that amount, the “Reduced Payment”Amount”). For purposes“Net Benefit” shall mean the present value of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into accountTotal Payments net of all applicable federal, state, locallocal, foreign income, employment and foreign income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, netexcise taxes. The reduction of the maximum reductionamounts payable under this Agreement, if applicable, shall be made by reducing taxable payments before non-taxable payments, and payments nearest 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 additionaltime before payments and/or benefits constituting the forfeited portion of the Full Payment, and # reductionlater in payments and/or benefits will occur in the manner that results in the greatest economic benefit for Executive. If more than onetime, unless an alternative method of reduction will result inis elected by the same economic benefit,Executive to 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 409A of the Code that would not otherwise be subject to such penalties, then the reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A of the Code as follows: # Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and # Transaction Payments that are “deferred compensation” within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning ofextent consistent with Section 409A of the Code. InFor purposes of reducing the event that acceleration of vesting of any equity compensation awards isTotal Payments to the Reduced Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision.reduced.
Parachute 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 from the Company or other event that constitutes a change in ownership or control within the 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 payment” within the meaning of Section 280G of the Code, and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the CompanyReduced Amount. The “Reduced Amount” shall cause to be determined, before any amountseither # the largest portion of the Transaction Payment are paid to Executive, whichthat would result in no portion of the following two alternative formsPayment being subject to the Excise Tax or # the total amount of payment would resultthe Payment, whichever of the amounts determined under [(A) and (B)], after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an after-tax basis, of the greater amount of Transaction Paymentsthe Payment notwithstanding that all or some portion of the Transaction 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 onlyTax. If 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 “parachute payments” is necessary so that the forfeited portion ofPayment equals the Full Payment, and #Reduced Amount, reduction in payments and/or benefits willshall occur in the manner that results in the greatest economic benefit for Executive. If more than one methodfollowing order: reduction of cash payments; 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 409Aemployee benefits; and cancellation of the Code that would not otherwise be subject to such penalties, then the reduction method shall be modified so as to avoid the impositionaccelerated vesting of penalties pursuant to Section 409A of the Code as follows: # Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and # Transaction Payments that are “deferred compensation” within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A of the Code.outstanding equity awards. In the event that acceleration of vesting of anyoutstanding equity compensation awards is to be reduced, such acceleration of vesting willshall be cancelledundertaken in the reverse order of the date of grant of the Executive’s outstanding equity awards. In no eventAll calculations and determinations made pursuant this [Section 6] will be made by an independent accounting or consulting firm or independent tax counsel appointed by the Company or any stockholder(the “Tax Counsel”) whose determinations shall be liable toconclusive and binding on the Company and the Executive for any amounts not paid as a resultall purposes. For purposes of making the calculations and determinations required by this [Section 6], the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G of the operationCode and Section 4999 of this provision.the Code. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.
Golden Parachute Payments. IfTax. In the event that any paymentpayments, entitlements or benefit (including payments and benefits (whether made or provided pursuant to this Agreement) thatAgreement or otherwise) provided to Executive would receive in connection with a Change in Control from the Company or other event that constitutes a change in ownership or controlconstitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code (“Code”), may be subject to an excise tax imposed pursuant to Section 4999 of the Code, then, Executive shall be entitled to the greater of, as determined on an after-tax basis (taking into account any such excise tax), # such parachute payments or # the greatest reduced amount of such parachute payments as would result in no amount of such parachute payments being subject to such excise tax. Any such payment reduction contemplated by the preceding sentence shall be implemented as follows: first, by reducing 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 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 of the above-mentioned clauses, the payment and/or benefit amounts to be reduced and the regulations thereunder (in either case, a “[[Unknown Identifier]] Event” and any suchacceleration of vesting to be cancelled shall be reduced or cancelled in the inverse order of their originally scheduled dates of payment or benefit, a “Transaction Payment”)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 # constitutebe accelerated, would be treated as a “parachute payment” within the meaning of Section 280G[Section 280G(b)(2)(A)] of the Code, and # but for this sentence, be subjectonly to the excise extent necessary to achieve the required reduction hereunder. The determination of such after-tax imposedamount under clauses (i) and (ii), above, shall be made by Section 4999 of the Code (the “Excise Tax”), thena nationally recognized certified public accounting firm that is selected by the Company shall causeand for purposes of present valuing any such payments under Treasury Regulation 1.280G-1 Q&A 32, the discount rate to be determined, before any amounts of the Transaction Payment are paid to Executive, which of the following two alternative forms of payment would result in Executive’s receipt, on an after-tax basis, of the greater amount of Transaction Payments notwithstanding that all or some portion of the Transaction 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 409A of the Code that would not otherwise be subject to such penalties, then the reduction methodused shall be modified sothe applicable Federal rate as to avoidin effect on the imposition of penalties pursuant to Section 409A of the Code as follows: # Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and # Transaction Payments that are “deferred compensation” within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A of the Code. In the event that acceleration of vesting of any equity compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision.Effective Date.
Parachute Payments. IfBest Pay. Any provision of this Agreement to the contrary notwithstanding, if any payment or benefit (including payments and benefitsExecutive would receive from the Company pursuant to this Agreement) that Executive would receive in connection with a Change in Control from the CompanyAgreement or other event that constitutes a change in ownership or control within the 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 otherwise (“Payment”) would # constitute a “parachute payment” within the meaning of Section 280G of the Code,Code and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Company shall cause toReduced Amount (as defined below). The “Reduced Amount” will be determined, before any amountseither # the largest portion of the Transaction Payment are paid to Executive, which of the following two alternative forms of paymentthat would result in Executive’s receipt, on an after-tax basis, of the greater amount of Transaction Payments notwithstanding that all or someno portion of the Transaction Payment may be(after reduction) being subject to the Excise Tax:Tax or # payment in full of the entire Payment, whichever 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 takenafter taking into account all applicable federal, state, and local and foreignemployment taxes, income and employment taxestaxes, 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/, results in Executive’ s receipt, on an after- tax basis, of the greater economic benefit notwithstanding that all or benefits constituting the forfeitedsome portion of the Full Payment, and #Payment may be subject to the Excise Tax. If a reduction in payments and/or benefits willa Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (A) of the preceding sentence, the reduction shall occur in the manner (the “Reduction Method”) 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.rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if such reductionthe Reduction Method or the Pro Rata Reduction Method would result in any portion of the Transaction PaymentsPayment being subject to penaltiestaxes pursuant to Section 409A of the Code(as defined below) that would not otherwise be subject to such penalties,taxes pursuant to Section 409A, then the reduction methodReduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of penaltiestaxes pursuant to Section 409A of the Code as follows: # Transactionas a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; # as a second priority, Payments that are contingent on future events (e.g., being terminated without Cause)cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and # Transactionas a third priority, Payments that are “deferred compensation” within the meaning of Section 409A of the Code[Section 409A] shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A of the Code. In the event that acceleration of vesting of any equity compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision.[Section 409A].
Parachute Payments. IfAnything in this Agreement to the contrary notwithstanding, if any payment or benefit (including payments and benefits pursuant to this Agreement) that Executive would receive in connection with a Change in Control from the Company or other event that constitutes a change in ownership or control within the 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 otherwise (“Payment”) would # constitute a “parachute payment” within the meaning of Section 280G of the Code,Code; and # but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be equal to the CompanyReduced Amount. The “Reduced Amount” shall cause to be determined, before any amountseither # the largest portion of the Transaction Payment are paid to Executive, whichthat would result in no portion of the following two alternative formsPayment being subject to the Excise Tax; or # the largest portion, up to and including the total, of payment would resultthe Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of Transaction Payments notwithstanding that all or some portionthe Payment. Any reduction made pursuant to this Section 5(a) shall be made in accordance with the following order of priority: # stock options whose exercise price exceeds the fair market value of the Transaction Payment may be subject to the Excise Tax:optioned stock (“Underwater Options”), # paymentFull Credit Payments (as defined below), that are payable in full of the entire amount of the Transaction Payments (a “Full Payment”), orcash, # 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 anon-cash 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 409A of the Code that would not otherwise be subject to such penalties, then the reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A of the Code as follows: # TransactionCredit Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transactiontaxable, # non-cash Full Credit Payments that are not contingent on future events;taxable, # Partial Credit Payments (as defined below) and # Transaction Paymentsnon-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that are “deferred compensation” within the meaning of Section 409Apayment or benefit owed on the latest date following the occurrence of the Code shallevent triggering the excise tax will be the first payment or benefit to be reduced (or eliminated) before Transaction Payments(with reductions made pro-rata in the event payments or benefits are owed at the same time). “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, that are not deferred compensation withinif reduced in value by one dollar reduces the meaning of Section 409Aamount of the Code. Inparachute payment (as defined in Section 280G of the event that acceleration of vesting of any equity compensation awards is to be reduced,Code) by one dollar, determined as if such acceleration of vesting will be cancelled in the reverse order ofpayment, distribution or benefit had been paid or distributed on the date of grant of Executive’s equity awards. In nothe event willtriggering the Companyexcise tax. “Partial Credit Payment” means any payment, distribution or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision.
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