Change in Control Payment Limitations. Notwithstanding anything in any Award Agreement to the contrary, if any acceleration of the vesting of the Shares or other actions with respect to the Shares (which actions could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments which Participant has the right to receive from the Company or any corporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), such deemed “payments” will be reduced to the largest amount as will result in no portion of such deemed “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that such “payments” shall only be reduced if such reduction would result in Participant receiving a greater net benefit, on an after-tax basis (including after payment of any excise tax imposed by Section 4999 of the Code), than Participant would have received had such reduction not occurred. Any reduction in payments and/or benefits required by this section will occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid or provided to Participant. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant for Participant’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. In no event will Participant exercise any discretion with respect to the ordering of any reductions of payments or benefits under this section. Unless the Company and the Participant otherwise agree in writing, any determination required under this section shall be made in writing by the Company’s independent public accountants or a national “Big Four” accounting firm selected by the Company (the “Accountants”), whose determination shall be conclusive and binding upon the Participant 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 Section 280G and 4999 of the Code. The Compan...
Change in Control Payment Limitations. Notwithstanding the preceding, in no event shall the aggregate payments or benefits to be made or afforded to Executive constitute an “excess parachute payment” under Section 280G of the Internal Revenue Code of 1986 as amended or any successor thereto, and in order to avoid such result, termination benefits will be reduced, if necessary, to an amount (the “Non-triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three (3) times Executive’s “Base Amount,” as determined in accordance with said Section 280G. The allocation of the reduction required hereby among the termination benefits provided by the preceding paragraphs shall be determined by Executive.
