Common use of Better After Tax Provision Clause in Contracts

Better After Tax Provision. In the event that it shall be determined that the payments and benefits you may receive in connection with a Change of Control would be subject to the excise tax imposed pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then, at your sole discretion, you may cause the Company to solicit shareholder approval of your “parachute payments” in accordance with the requirements set forth in Section 280G(b)(5) of the Code and the underlying regulations, provided that immediately before the Change of Control, none of the Company’s stock is readily tradeable on an established securities market or otherwise. If you do not elect to have the Company solicit such shareholder approval or if any of the Company’s stock is readily tradeable on an established securities market immediately before the Change of Control, your “parachute payments” shall be payable (i) in full, or (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the 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 you on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may be taxable under Section 4999 of the Code. Unless the Company and you otherwise agree in writing, any determination required under this Section 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 Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The 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 Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section. If a reduced amount will give rise to the greater after-tax benefit, the reduction in the payments shall occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to you. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction shall 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. In the event that acceleration of compensation from your equity awards is to be reduced, such acceleration of vesting shall be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Better After Tax Provision. In Notwithstanding any provision of this Agreement to the event that it shall contrary, if any payment or benefit to be determined that paid or provided hereunder would be an “Excess Parachute Payment,” within the meaning of Section 280G of the U.S. Internal Revenue Code (the “Code”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits you may receive to be paid or provided under this Agreement and all other agreements with the Company and any successor entity shall be reduced to the minimum extent necessary (but in connection with no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payments and benefits to be provided (i.e. a Change of Control would be subject to “best results provision”) determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then, at your sole discretion, you may cause the Company to solicit shareholder approval of your “parachute payments” in accordance with the requirements set forth in Section 280G(b)(5) of the Code and the underlying regulations, provided that immediately before the Change of Control, none of the Company’s stock is readily tradeable on an established securities market or otherwise. If you do not elect to have the Company solicit such shareholder approval or if any of the Company’s stock is readily tradeable on an established securities market immediately before the Change of Control, your “parachute payments” shall be payable (i) in full, or (ii) as to such lesser amount which would result in no portion any successor provision thereto, any tax imposed by any comparable provision of such severance state law, and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the any applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results taxes). The determination of whether any reduction in the receipt by you on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and or benefits may to be taxable under Section 4999 of the Code. Unless the Company and you otherwise agree in writing, any determination provided is required under this Section paragraph shall be made in writing by the Company’s independent public accountants (or another accounting or tax firm of national reputation, at 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 Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 expense of the CodeCompany. The Company and you fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this paragraph shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination not of itself limit or otherwise affect any other rights of Executive under this SectionAgreement. The Company shall bear all costs In the Accountants may reasonably incur in connection with event that any calculations contemplated by this Section. If a reduced amount will give rise payment or benefit intended to the greater after-tax benefitbe provided is required to be reduced, the reduction in then the payments shall occur be reduced or eliminated in the following order: (ai) reduction of any cash payments; payments that do not constitute deferred compensation, (bii) cancellation of accelerated any taxable benefits that do not constitute deferred compensation, (iii) any nontaxable benefits that do not constitute deferred compensation, (iv) any vesting of equity awards other than stock options; (c) cancellation awards, in each case in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date that triggers the applicability of accelerated vesting of stock options; the excise tax, and (dv) reduction of other benefits paid to you. Within lastly, any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction shall 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. In the event that acceleration of compensation from your equity awards is to be reduced, such acceleration of vesting shall be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.