Parachute Payments. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that receipt of all payments or distributions by the Company or its affiliates in the nature of compensation to or for your benefit, whether paid or payable pursuant to this Agreement or otherwise, would subject you to the excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the amount of “parachute payments” (within the meaning of Section 280G of the Code) paid or payable pursuant to this Agreement (the “Agreement Payments”) shall be reduced to the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax under Section 4999 of the Code (the “Reduced Amount”) only if it is determined that you would be better-off, on a net after-tax basis, if the Agreement Payments were reduced to the Reduced Amount. All determinations required to be made under this [Section 11(b)] shall be made by an independent accounting firm (the “Accounting Firm”), and all fees and expenses of the Accounting firm shall be borne solely by the Company. The Accounting Firm shall provide detailed supporting calculations to both the Company and to you, and absent manifest error, shall be binding upon the Company and you.
Parachute Payments. Anything in this AgreementNotwithstanding any other provision to the contrary notwithstanding, in the event it shall be determined that receipt of allcontrary, if any payments or distributions bybenefits that you would receive from the Company or its affiliates in the nature of compensation to or for your benefit, whether paid or payable pursuant to this Agreement or otherwise, would subject you tootherwise (collectively, the excise tax under Section 4999 of“Payments”) would, either separately or in the Internal Revenue Code of 1986, as amended (the “Code”), the amount ofaggregate, # constitute “parachute payments” (withinwithin the meaning of Section 280G of the Code) paid or payable pursuantCode, and # but for this sentence, be subject to this Agreement (the “Agreement Payments”) shall be reduced to the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax underimposed by Section 4999 of the Code (the “Excise Tax”), then the Payments will be equal to the Reduced Amount (defined below). The “Reduced Amount”) only if it is determined will be either # the entire amount of the Payments, or # an amount equal to the largest portion of the Payments that you would result in no portion of any of the Payments (after reduction) being subject to the Excise Tax, 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, net of the maximum reduction in federal income taxes which could be better-off,obtained from a deduction of such state and local taxes), results in your receipt, on a netan after-tax basis, ifof the Agreementgreatest amount of the Payments. If a reduction in the Payments were reduced to the Reduced Amount. All determinations requiredis to be made so that the amount of the Payments equals the Reduced Amount, the Payments will be paid only to the extent permitted under the Reduced Amount alternative; provided, that in the event the Reduced Amount is paid, the cash payments set forth in [Section 3.1] shall be reduced as required by the operation of this [Section 11(b)] shall be made by an independent accounting firm (the “Accounting Firm”), and all fees and expenses of the Accounting firm shall be borne solely by the Company. The Accounting Firm shall provide detailed supporting calculations to both the Company and to you, and absent manifest error, shall be binding upon the Company and you.6.9].
Parachute Payments. Anything inLimitation on Payments and Benefits. Notwithstanding any provision of this Agreement to the contrary notwithstanding,contrary, in the event it shallthat any amount or benefit to be determined that receipt of all payments or distributions by the Company or its affiliates in the nature of compensation to or for your benefit, whether paid or payable pursuant toprovided under this Agreement or otherwise,otherwise to the Employee constitutes a parachute payment within the meaning of Section 280G of the Code, and but for this provision, would be subject you to the excise tax imposed by Section 4999 of the Code, then the totality of those amounts shall be either: # delivered in full, or # delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the amount of “parachute payments” (within the meaning of Section 280GCode, whichever of the Code) paidforegoing amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999 of the Code (and any equivalent state or payable pursuant to this Agreement (the “Agreement Payments”) shall be reduced tolocal excise taxes), results in the receipt by the Employee on an after-tax basis, of the greatest amount of Agreement Paymentssuch payments and benefits, notwithstanding that canall or some portion of such amount may be paid that would not result in the imposition of the excise taxtaxable under Section 4999 of the Code (the “Reduced Amount”) only if it is determined that you would be better-off, on a net after-tax basis, ifCode. Unless the Agreement Payments were reduced toCompany and the Reduced Amount. All determinationsEmployee otherwise agree, any determination required to be made under this [Section 11(b)]provision shall be made in writing by ana firm of independent accountingpublic accountants or a law firm (the “Accounting Firm”), and all fees and expenses of the Accounting firm shall be borne solelyselected by the Company. The Accounting Firm shall provide detailed supporting calculations to both the Company and reasonably acceptable to you, and absent manifest error,the Employee (the Accountants), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. The Company and you.the Employee agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this provision. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this provision. Any reduction of any amount required by this provision shall occur in the following order: # reduction of cash payments to the Employee under this Agreement or otherwise; # reduction of vesting acceleration of equity awards under this Agreement or otherwise; and # reduction of other benefits paid or provided to the Employee. If two or more equity awards are granted on the same date, each award will be reduced on a pro rata basis (dollar-for-dollar).
Parachute Payments. Anything in this Agreement to the contrary notwithstanding, inIn the event it shallthat any payment or benefit received or to be determined that receipt of all payments or distributionsreceived by the Company or its affiliates in the nature of compensation to or for your benefit, whether paid or payableExecutive pursuant to this AgreementAgreement, pursuant to another compensation or otherwise,benefit program or otherwise (“Payments”) would subject you to the excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the amount of# constitute a “parachute payments” (withinpayment” within the meaning of Section 280G of the Code) paid or payable pursuantCode and # but for this [Section 13], be subject to this Agreement (the “Agreement Payments”) shall be reduced to the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax underimposed by Section 4999 of the Code (the “Reduced(“Excise Tax”), then such Payments shall either be # provided in full pursuant to the terms of this Agreement and any other plan, program or applicable agreement, or # provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”) only if it is determined that you would be better-off,, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on a netsuch taxes), results in the receipt by Executive, on an after-tax basis, ifof the Agreementgreatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments were reducedmay be subject to the Reduced Amount. All determinations required to be made under this [Section 11(b)] shall be made by an independent accounting firm (the “Accounting Firm”), and all fees and expenses of the Accounting firm shall be borne solely by the Company. The Accounting Firm shall provide detailed supporting calculations to both the Company and to you, and absent manifest error, shall be binding upon the Company and you.Excise Tax.
Parachute Payments. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that receipt of all paymentsPayment. If any payment or distributions by the Company or its affiliates in the nature of compensation to or for your benefit, whether paid or payablebenefit CFO would receive pursuant to this Agreement or otherwise,(Payment) would subject you to# constitute a Parachute Payment within the excise tax undermeaning of Section 4999280G of the Internal Revenue Code of 1986, as amended (the “Code”Code), the amount of “parachute payments” (within the meaning of Section 280G of the Code) paid or payable pursuantand # but for this sentence, be subject to this Agreement (the “Agreement Payments”) shall be reduced to the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax underimposed by Section 4999 of the Code (the “Reduced Amount”Excise Tax) only if it is determined that you would, then such Payment shall be better-off, on a net after-tax basis, if the Agreement Payments were reducedequal to the Reduced Amount. All determinations required to be made under this [Section 11(b)]The Reduced Amount shall be made by an independent accounting firm (the “Accounting Firm”), and all fees and expenseseither # the largest portion of the Accounting firmPayment that would result in 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 CFOs receipt, on an after-tax basis, of the greatest economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting 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 CFO. If more than one method of reduction will result in the same economic benefit, the items so reduced will be borne solely by the Company. The Accounting Firm shall provide detailed supporting calculations to both the Company and to you, and absent manifest error, shall be binding upon the Company and you.reduced pro rata.
Parachute Payments. Anything in this Agreement to the contrary notwithstanding, inIn the event it shall be determined that receipt of all payments or distributions by the Company or its affiliates in the nature of compensationany benefits payable to or for your benefit, whether paid or payableExecutive pursuant to this Agreement or otherwise, would subject you toany other benefit plan or agreement (“Payments”) # constitute “parachute payments” within the excise tax undermeaning of Section 4999280G of the Internal Revenue Code of 1986, as amended (the “Code”), the amount of “parachute payments” (within the meaning of Section 280G of the Code) paid or payable pursuantand # but for this [Article 6.7] would be subject to this Agreement (the “Agreement Payments”) shall be reduced to the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax underimposed by Section 4999 of the CodeCode, or any comparable successor provisions (the “Reduced Amount”“Excise Tax”) only if it is determined, then Executive’s Payments shall be provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax. In the event that you wouldthe payments and/or benefits are to be better-off, on a net after-tax basis, ifreduced pursuant to this [Article 6.7], such payments and benefits shall be reduced such that the Agreementamount the Payments wereare reduced to as close to the Reduced Amount. All determinationsamount that is below the amount where the Excise Tax would be required to be made underpaid as is reasonably possible. In applying this [Section 11(b)]principle, the reduction shall be made by an independent accounting firm (the “Accounting Firm”), and all fees and expensesin a manner consistent with the requirements of Section 409A of the Accounting firmCode and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be borne solelyreduced on a pro rata basis but not below zero. For purposes of making the calculations required by this [Article 6.7], the Company.Company’s finance personnel responsible for the calculation may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Accounting Firm shall provide detailed supporting calculations to both the Company and Executive shall furnish to you,such finance personnel such information and absent manifest error, shall be binding upondocuments as the Company and you.finance personnel may reasonably request in order to make a determination under this [Article 6.7].
Parachute Payments. AnythingOrder of Payment. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to you # constitute “parachute payments” within the contrary notwithstanding, in the event it shall be determined that receiptmeaning of all payments or distributions by the Company or its affiliates in the nature of compensation to or for your benefit, whether paid or payable pursuant to this Agreement or otherwise, would subject you to the excise tax under Section 4999280G of the Internal Revenue Code of 1986, as amended (the “Code”), and # but for this provision, would be subject to the amount of “parachute payments” (within the meaning ofexcise tax imposed by Section 280G4999 of the Code) paid or payable pursuant toCode, then Executive’s severance, vesting and other benefits under this Agreement (the “Agreement Payments”) shall be reducedpayable either # in full, or # as to the greatestsuch lesser amount of Agreement Payments that can be paid thatwhich would not result in the impositionno portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code (the “Reduced Amount”) only if it is determined that you would be better-off,Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by [Section 4999], results in the receipt by Executive on a netan after-tax basis, ifof the Agreement Payments were reduced to the Reduced Amount. All determinations required to be madegreatest amount of severance benefits under this [Section 11(b)]Agreement notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro rata reduction of # cash payments subject to Section 409A and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively, “[Section 409A]”) as deferred compensation and # cash payments not subject to Section 409A, and second a pro rata cancellation of # equity-based compensation subject to Section 409A as deferred compensation and # equity-based compensation not subject to Section 409A. Reduction in either cash payments or equity compensation benefits shall be made pro-rata between and among benefits which are subject to Section 409A and benefits which are exempt from [Section 409A]. The Accountants (as defined below) shall take into account the value of, services provided or to be provided by an independent accounting firm (the “Accounting Firm”), and all fees and expensesthe Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Accounting firm shallCompany (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be borne solely byconsidered reasonable compensation within the Company. The Accounting Firm shall provide detailed supporting calculationsmeaning of Q&A-9 and Q&A-40 to bothQ&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code. Unless the Company and to you, and absent manifest error,you otherwise agree in writing, any determination required under this provision shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this provision, the Accountants may make reasonable assumptions and you.approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this provision. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this provision.
Parachute Payments. Anything in thisthe Agreement to the contrary notwithstanding, in the event itthe Accounting Firm (as defined below) shall be determineddetermine that receipt of all payments or distributions byPayments (as defined below) would subject Executive to the Company or its affiliates inexcise tax under § 4999 of the natureCode, the Accounting Firm shall determine whether to reduce any of compensation to or for your benefit, whetherthe Payments paid or payable pursuant to this Agreement or otherwise, would subject you to the excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the amount of “parachute payments” (within the meaning of Section 280G of the Code) paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced to the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax under Section 4999 of the Code (the “Reduced Amount”) only if it is determinedthe Accounting Firm determines that youExecutive would be better-off, onhave a net after-tax basis,greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were reduced to the Reduced Amount. All determinations required to be made under this [Section 11(b)] shall be made by an independent accounting firm (the “Accounting Firm”), and all fees and expenses ofso reduced. If the Accounting firmFirm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, Executive shall be borne solely by the Company. The Accounting Firm shall provide detailed supporting calculationsreceive all Agreement Payments to both the Company and to you, and absent manifest error, shall be binding upon the Company and you.which Executive is entitled hereunder.
Parachute Payments. Anything inSection . Any provision of this AgreementPolicy to the contrary notwithstanding, inif any payment or benefit a Participant would receive from the event it shall be determined that receipt of all payments or distributions by the Company or its affiliates in the nature of compensation to or for your benefit, whether paid or payable pursuant to this AgreementPolicy or otherwise,otherwise (a “Payment”) would subject you to the excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the amount of# constitute a “parachute payments” (withinpayment” within the meaning of Section 280G of the Code) paid or payable pursuantCode, and # but for this sentence, be subject to this Agreement (the “Agreement Payments”) shall be reduced to the greatest amount of Agreement Payments that can be paid that would not result in the imposition of the excise tax underimposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Amount (defined below). The “Reduced Amount”) only if it is determined will be either # the largest portion of the Payment that you would be better-off,result in 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 the Participant’s receipt, on a netan after-tax basis, ifof the Agreement Payments were reducedgreater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount. All determinations requiredAmount, reduction will occur in the manner that results in the greatest economic benefit to the Participant. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced by mutual agreement of the parties. If deemed necessary for compliance with Section 409A of the Code, any reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. To the extent any such payment is to be made under this [Section 11(b)]over time (e.g., in installments, etc.), then the Payments shall be made by an independent accounting firm (the “Accounting Firm”), and all fees and expensesreduced in reverse chronological order. In no event will the Company or any stockholder be liable to the Participant for any amounts not paid as a result of the Accounting firm shall be borne solely by the Company. The Accounting Firm shall provide detailed supporting calculations to both the Company and to you, and absent manifest error, shall be binding upon the Company and you.operation of this Section.
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