Common use of Code Section 280G Clause in Contracts

Code Section 280G. Notwithstanding any other provision of this Agreement to the contrary, in the event that any amounts payable to you as a result of Section 6.2 or 6.3 hereof, either alone or together with amounts payable pursuant to any other plan, program or arrangement (a) constitute “parachute payments” within the meaning of Section 280G of the Code, and (b) but for this Section 7.5 would be subject to the excise tax imposed by Section 4999 of the Code or any comparable successor provisions (the “Excise Tax”), then the vesting acceleration provided in Section 6.2 or 6.3, as applicable, shall be either (a) provided to you in full, or (b) provided to you to such lesser extent that would result in no portion of the payments so accelerated being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by you, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. All determinations required to be made under this Section 7.5 shall be made by a registered public accounting firm selected by the Company, which shall provide supporting calculations both to the Company and you no later than the date of the applicable Change in Control. In the event that the Payments are to be reduced pursuant to this Section 7.5, such Payments shall be reduced such that the reduction of compensation to be provided to the Executive as a result of this Section 7.5 is minimized. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero.

Code Section 280G. Notwithstanding any other provision of anything in this Agreement to the contrary: ​ (a) If any of the payments or benefits received or to be received by the Employee (including, without limitation, any payment or benefits received in connection with a “change of control” or the event that any amounts payable to you as a result Employee’s termination of Section 6.2 or 6.3 hereofemployment, either alone or together with amounts payable whether pursuant to the terms of this Agreement or any other plan, program arrangement or arrangement agreement, or otherwise) (aall such payments collectively referred to herein as the (“280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the CodeCode and would, and (b) but for this Section 7.5 would 6.9(a), be subject to the excise tax imposed by under Section 4999 of the Code or any comparable successor provisions (the “Excise Tax”), then prior to making the vesting acceleration provided in Section 6.2 or 6.3280G Payments, as applicable, a calculation shall be either made comparing (ai) provided the Net Benefit (as defined below) to you in full, or (b) provided to you to such lesser extent that would result in no portion the Employee of the payments so accelerated 280G Payments after payment of the Excise Tax to (ii) the Net Benefit to the Employee if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax, whichever . Only if the amount calculated under clause (i) above is less than the amount under clause (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by you, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be 280G Payments is subject to the Excise Tax. All determinations required to be made under this Section 7.5 “Net Benefit” shall be made by a registered public accounting firm selected by mean the Company, which shall provide supporting calculations both to the Company and you no later than the date present value of the applicable Change in Control280G Payments net of all federal, state, local, foreign income, employment and excise taxes. In the event that the Payments are to be reduced Any reduction made pursuant to this Section 7.5, such Payments shall be reduced such that the reduction of compensation to be provided to the Executive as a result of this Section 7.5 is minimized. In applying this principle, the reduction 6.9(a) shall be made in a manner determined by the Company that is consistent with the requirements of Code Section 409A and where two economically equivalent amounts that maximizes the Employee’s economic position and after-tax income; for the avoidance of doubt, the Employee shall not have any discretion in determining the manner in which the payments and benefits are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zeroreduced.

Code Section 280G. Notwithstanding (a) Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any amount payable to or other provision benefit receivable by Executive hereunder, including, without limitation, any excise tax imposed by Section 4999 of this Agreement to the contraryCode; provided, in the event however, that any amounts payable such amount or benefit deemed to you be a Parachute Payment (as a result of Section 6.2 or 6.3 hereof, either defined below) alone or together with amounts payable pursuant when added to any other amount payable or paid to or other benefit receivable or received by Executive which is deemed to constitute a Parachute Payment (whether or not under an existing plan, program arrangement or arrangement (a) constitute “parachute payments” within other agreement), and would result in the meaning imposition on Executive of an excise tax under Section 280G 4999 of the CodeCode (all such amounts and benefits being hereinafter called “Total Payments”), and (b) but for this Section 7.5 would shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by Executive if no such reduction was made. For purposes of this Section 3.3, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or any comparable successor provisions is then entitled to receive from the Company that would constitute Parachute Payments, less (ii) the “Excise Tax”)amount of all federal, then state and local income taxes payable with respect to the vesting acceleration provided foregoing calculated at the maximum marginal income tax rate for each year in Section 6.2 or 6.3, as applicable, which the foregoing shall be either paid to Executive (a) provided to you based on the rate in full, or (b) provided to you to effect for such lesser extent that would result year as set forth in no portion the Code as in effect at the time of the payments so accelerated being subject to the Excise Tax, whichever first payment of the foregoing amounts, when taking into account foregoing) and the amount of applicable federal, state, local and foreign income and employment taxes, less (iii) the Excise Tax, and any other applicable taxes, results in the receipt by you, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. All determinations required to be made under this Section 7.5 shall be made by a registered public accounting firm selected by the Company, which shall provide supporting calculations both to the Company and you no later than the date of the applicable Change in Control. In the event that the Payments are to be reduced pursuant to this Section 7.5, such Payments shall be reduced such that the reduction of compensation to be provided to the Executive as a result of this Section 7.5 is minimized. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero.excise taxes #56963029 v4

Code Section 280G. Notwithstanding (a) Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any amount payable to or other provision benefit receivable by Executive hereunder, including, without limitation, any excise tax imposed by Section 4999 of this Agreement to the contraryCode; provided, in the event however, that any amounts payable such amount or benefit deemed to you be a Parachute Payment (as a result of Section 6.2 or 6.3 hereof, either defined below) alone or together with amounts payable pursuant when added to any other amount payable or paid to or other benefit receivable or received by Executive which is deemed to constitute a Parachute Payment (whether or not under an existing plan, program arrangement or arrangement (a) constitute “parachute payments” within other agreement), and would result in the meaning imposition on Executive of an excise tax under Section 280G 4999 of the CodeCode (all such amounts and benefits being hereinafter called “Total Payments”), and (b) but for this Section 7.5 would shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by Executive if no such reduction was made. For purposes of this Section 3.3, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or any comparable successor provisions is then entitled to receive from the Company that would constitute Parachute Payments, less (ii) the “Excise Tax”)amount of all federal, then state and local income taxes payable with respect to the vesting acceleration provided foregoing calculated at the maximum marginal income tax rate for each year in Section 6.2 or 6.3, as applicable, which the foregoing shall be either paid to Executive (a) provided to you based on the rate in full, or (b) provided to you to effect for such lesser extent that would result year as set forth in no portion the Code as in effect at the time of the payments so accelerated being subject to the Excise Tax, whichever first payment of the foregoing amounts, when taking into account foregoing) and the amount of applicable federal, state, local and foreign income and employment taxes, less (iii) the Excise Tax, and any other applicable taxes, results in the receipt by you, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. All determinations required to be made under this Section 7.5 shall be made by a registered public accounting firm selected by the Company, which shall provide supporting calculations both to the Company and you no later than the date of the applicable Change in Control. In the event that the Payments are to be reduced pursuant to this Section 7.5, such Payments shall be reduced such that the reduction of compensation to be provided to the Executive as a result of this Section 7.5 is minimized. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero.excise taxes #56956674 v6