Common use of Code Section 280G Clause in Contracts

Code Section 280G. Notwithstanding any other provision of this Agreement, if it is determined that the benefits or payments payable under this Agreement, taking into account other benefits or payments provided under other plans, agreements or arrangements, constitute Parachute Payments that would subject Executive to tax under Section 4999 of the Code, it must be determined whether Executive will receive the total payments due or the Reduced Amount. Executive will receive the Reduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from Executive receiving the total payments due. If it is determined that the total payments should be reduced to the Reduced Amount, the Company must promptly notify Executive of that determination, including a copy of the detailed calculations by an accounting firm or other professional organization qualified to make the calculation that was selected by the Company and acceptable to Executive (the “Accounting Firm”). The Company shall pay the fees and expenses of the Accounting Firm. All determinations made by the Accounting Firm under this SECTION 6.16 are binding upon the Company and Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by Executive. Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in part.

Code Section 280G. Notwithstanding any other provision of this Agreement, if it is determined that the benefits or payments payable under this Agreement, taking into account other benefits or payments provided under other plans, agreements or arrangements, constitute Parachute Payments that would subject the Executive to tax under Section 4999 of the Code, it must be determined whether the Executive will receive the total payments due or the Reduced Amount. The Executive will receive the Reduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from the Executive receiving the total payments due. If it is determined that the total payments should be reduced to the Reduced Amount, the Company must promptly notify the Executive of that determination, including a copy of the detailed calculations by an accounting firm or other professional organization qualified to make the calculation that was selected by the Company and acceptable to the Executive (the “Accounting Firm”). The Company shall pay the fees and expenses of the Accounting Firm. All determinations made by the Accounting Firm under this SECTION 6.16 6.15 are binding upon the Company and the Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and the Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to the Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide the Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by the Executive. The Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in part.

Code Section 280G. Notwithstanding any other provision of this Agreement, if it is determined that the benefits or payments payable under this Agreement, taking into account other benefits or payments provided under other plans, agreements or arrangements, constitute Parachute Payments that would subject the Executive to tax under Section 4999 of the Code, it must be determined whether the Executive will receive the total payments due or the Reduced Amount. The Executive will receive the Reduced Amount if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from the Executive receiving the total payments due. If it is determined that the total payments should be reduced to the Reduced Amount, the Company must promptly notify the Executive of that determination, including a copy of the detailed calculations by an accounting firm or other professional organization qualified to make the calculation that was selected by the Company and acceptable to the Executive (the “Accounting Firm”). The Company shall pay the fees and expenses of the Accounting Firm. All determinations made by the Accounting Firm under this SECTION 6.16 Section 6.15 are binding upon the Company and the Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and the Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to the Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide the Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by the Executive. The Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in part.

Code Section 280G. Notwithstanding any other provision of anything in this AgreementAgreement to the contrary, if it is determined that the aggregate amount of the benefits or and payments payable under this Agreement, taking into account and other payments and benefits or payments provided under other planswhich the Executive has the right to receive from the Corporation (including the value of any equity rights which become vested upon a Change in Control) (the “Total Payments”) would constitute a “parachute payment” as defined in Section 280G of the US Internal Revenue Code of 1986, agreements or arrangementsas amended, constitute Parachute Payments such that the Executive would be subject Executive to the excise tax under Code Section 4999 of the Code, it must then the Accounting Firm (defined below in this Section 9) shall determine which of the following has a greater aggregate value for the Executive, which greater value shall be determined paid to the Executive: (a) The after-tax amount that would be retained by the Executive (after taking into account all required income taxes payable by the Executive and the amount of any excise taxes that would be payable by the Executive under Code Section 4999 (the “Excise Taxes”)) if the Executive were to receive the Total Payments, or (b) The after-tax amount that would be retained by the Executive (after taking into account all federal, state and local income taxes payable by the Executive) if the Executive were to receive the Total Payments reduced to the largest amount that would result in no portion of the Total Payments being subject to Excise Taxes (the “Reduced Payments”). If the Total Payments are payable to the Executive, the Corporation shall not reimburse the Executive for any Excise Taxes imposed on the Executive or provide any such other compensation (whether through a tax gross-up or otherwise) to mitigate the effects of the Excise Taxes. If the Executive is to receive Reduced Payments, the Total Payments payable will be reduced or eliminated in the following order: (1) cash payments, (2) taxable benefits, (3) nontaxable benefits and (4) accelerated vesting of equity awards. The determination of whether the Executive will receive the total payments due Total Payments or the Reduced Amount. Executive will receive Payments, and the calculation of the amount of the Reduced Amount Payments, if the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts that would result from Executive receiving the total payments due. If it is determined that the total payments should applicable, shall be reduced to the Reduced Amount, the Company must promptly notify Executive of that determination, including performed by a copy of the detailed calculations by an nationally recognized certified public accounting firm or other professional organization qualified to make the calculation that was selected by the Company and acceptable to Executive Corporation (the “Accounting Firm”). The Company In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Corporation may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall pay then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm. All determinations made Firm shall be borne solely by the Accounting Firm under this SECTION 6.16 are binding upon the Company and Executive, subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by Executive. Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in partCorporation.

Code Section 280G. Notwithstanding If any other provision payment or benefit the Executive would receive pursuant to a Change of Control from the Company or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this Agreementsentence, if it is determined that be subject to the benefits or payments payable under this Agreement, taking into account other benefits or payments provided under other plans, agreements or arrangements, constitute Parachute Payments that would subject Executive to excise tax under imposed by Section 4999 of the CodeCode (the “Excise Tax”), it must then such Payment shall be determined whether Executive will receive the total payments due or equal to the Reduced Amount. Executive will receive The “Reduced Amount” shall be either (x) the Reduced Amount if largest portion of the Reduced Amount results in equal or greater Net After Tax Receipts than the Net After Tax Receipts Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) 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 Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. Any reduction shall be made in the following manner: first a pro rata reduction of (i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code. Reduction in either cash payments or equity compensation benefits shall be made pro rata between and among benefits which are subject to Section 409A of the Code and benefits which are exempt from Executive receiving Section 409A of the total payments dueCode. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If it the accounting firm so engaged by the Company is determined serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Executive within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the total payments should be reduced Company or the Executive) or such other time as requested by the Company or the Executive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, the Company must promptly notify Executive of that determination, including a copy of the detailed calculations by an accounting firm or other professional organization qualified to make the calculation that was selected by it shall furnish the Company and the Executive with an opinion reasonably acceptable to the Executive (the “Accounting Firm”)that no Excise Tax will be imposed with respect to such Payment. The Company shall pay the fees and expenses Any good faith determinations of the Accounting Firm. All determinations accounting firm made by the Accounting Firm under this SECTION 6.16 are hereunder shall be final, binding and conclusive upon the Company and the Executive, . The Company agrees to cooperate with the Executive to minimize the amount of any payment to the Executive that is subject to any differing determination by the Internal Revenue Service. It is the intention of the Company and Executive to reduce the payments under this Agreement and any other plan, agreement or arrangement only if the aggregate Net After Tax Receipts to Executive would thereby be increased. If it is determined that the total payments should be reduced to the Reduced Amount, any reduction shall be in the order that would provide Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata if two alternatives provide the same result) and shall, to the extent permitted by Code Section 280G and 409A be designated by Executive. Executive shall at any time have of the unilateral right Code, including soliciting the consent of the Company’s stockholders, as applicable, to forfeit any equity grant in whole or in partsuch payment under Section 280G(b)(5) of the Code.

Code Section 280G. Notwithstanding any other provision of (a) Anything in this AgreementAgreement to the contrary notwithstanding, if it is determined in the event that the benefits or payments payable under this Agreement, taking into account other benefits or payments provided under other plans, agreements or arrangements, constitute Parachute Accounting Firm shall determine that receipt of all Payments that would subject the Executive to tax under 2015 Form A&R CIC Agrt -10- Code Section 4999 4999, the Accounting Firm shall determine whether some amount of Agreement Payments meets the Code, it must be determined whether Executive will receive the total payments due or the definition of Reduced Amount. Executive will receive If the Accounting Firm determines that there is a Reduced Amount if Amount, then the aggregate Agreement Payments shall be reduced to such Reduced Amount results in equal or greater Net After Tax Receipts than Amount. (b) If the Net After Tax Receipts that would result from Executive receiving the total payments due. If it is determined Accounting Firm determines that the total payments aggregate Agreement Payments should be reduced to the Reduced Amount, the Company must shall promptly notify give the Executive of notice to that determination, including effect and a copy of the detailed calculations by an accounting firm calculation thereof, and the Executive may then elect, in his or other professional organization qualified her sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the present value of the aggregate Agreement Payments equals the Reduced Amount); provided, that the Executive shall not be permitted to make elect to reduce any Agreement Payment that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A, and shall advise the calculation that was selected Company in writing of his or her election within 10 days of his or her receipt of notice. If no such election is made by the Company and acceptable to Executive (within such 10-day period, the “Accounting Firm”). The Company shall pay reduce the fees Agreement Payments in the following order: (1) Agreement Payments which do not constitute “nonqualified deferred compensation” subject to Code Section 409A shall be reduced first; and expenses of the Accounting Firm(2) all other Agreement Payments shall then be reduced, in each case as follows: (i) cash payments shall be reduced before non-cash payments and (ii) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. All determinations made by the Accounting Firm under this SECTION 6.16 are Section 11 shall be binding upon the Company and the Executive and shall be made within 60 days of the Executive’s Separation from Service. In connection with making determinations under this Section 11, subject the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Control, including any differing non-competition provisions that may apply to the Executive and the Company shall cooperate in the valuation of any such services, including any non-competition provisions. (c) As a result of the uncertainty in the application of Code Section 4999 at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement which should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”), in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service. It is Service against either the intention Company or the Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of the Company and Executive shall be repaid by the Executive to reduce the payments under this Agreement and any other planCompany together with interest at the applicable federal rate provided for in Code Section 7872(f)(2); provided, agreement or arrangement only if the aggregate Net After Tax Receipts to Executive would thereby be increased. If it is determined however, that the total payments should be reduced to the Reduced Amount, any reduction no such repayment shall be in the order that would provide Executive with the largest amount of Net After Tax Receipts (subject to the remainder of this sentence, pro rata required if two alternatives provide the same result) and shall, to the extent permitted by such deemed repayment would not either reduce the amount on which the Executive is subject to tax under Code Section 280G 1 and 409A Code Section 4999 or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be designated promptly paid by Executivethe Company to or for the benefit of the Executive together with interest at the applicable federal rate provided for in Code Section 7872(f)(2). (d) All fees and expenses of the Accounting Firm in implementing the provisions of this Section 11 shall be borne by the Company. Executive shall at any time have the unilateral right to forfeit any equity grant in whole or in part.2015 Form A&R CIC Agrt -11-