Common use of Code Section 280G Clause in Contracts

Code Section 280G. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as “Payments”) would, if paid, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, prior to the making of any Payments to the Executive, a calculation shall be made comparing (X) the net after-tax benefit to the Executive of the Payments after payment by the Executive of the Excise Tax, to (Y) the net after-tax benefit to the Executive if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (X) above is less than the amount calculated under (Y) above, then the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Control, as determined by the Determination Firm (as defined in Section 3.7(b)(ii)) below). For purposes of this Section 3.7, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 3.7, the “

Code Section 280G. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any payment or distribution by the Company Employer to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as “Payments”) would, if paid, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, prior to the making of any Payments to the ExecutiveEmployee, a calculation shall be made comparing (X) the net after-tax benefit to the Executive Employee of the Payments after payment by the Executive Employee of the Excise Tax, to (Y) the net after-tax benefit to the Executive Employee if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (X) above is less than the amount calculated under (Y) above, then the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Control, as determined by the Determination Firm (as defined in Section 3.7(b)(ii10(b)(ii)) below). For purposes of this Section 3.710, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 3.710, the “Parachute Value” of a Payment means the present value as of the date of the Change in Control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Code Section 280G. (a) 6.1 Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as “Payments”) would, if paid, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)) imposed by Code Section 4999, then, then prior to the making of any of the Payments to the Executive, a calculation shall be made comparing (Xi) the net after-tax benefit to the Executive Executive, of the Payments after payment by the Executive of the Excise Tax, to (Yii) the net after-tax benefit to the Executive Executive, if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (Xi) above is less than the amount calculated under (Yii) above, then {OR055187.DOCX; 3} the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Controlchange of control, as determined by the Determination Firm (as defined in Section 3.7(b)(ii)subsection (b) below). For purposes of this Section 3.76, present value shall be determined in accordance with Code Section 280G(d)(4) of the Code). For purposes of this Section 3.76, the “Parachute Value” of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Code Section 280G(b)(2), as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Code Section 280G. (a) Notwithstanding anything If any benefits provided for in this Agreement or otherwise payable to Employee (a “Payment”) would (i) constitute a “parachute payment” within the contrary, in the event it shall be determined that any payment or distribution by the Company to or for the benefit meaning of Section 280G of the Executive Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (whether paid or payable or distributed or distributable pursuant to the terms of “Code”), and (ii) but for this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as “Payments”) would, if paidsentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, prior then such Payment shall be equal to the making Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of any Payments the Payment that would result in no portion of the Payment being subject to the Executive, a calculation shall be made comparing Excise Tax or (Xy) the net largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable U.S. federal, state, local, and other taxes and the Excise Tax (all computed at the highest applicable marginal rate), results in Employee’s receipt, on an after-tax benefit to the Executive basis, of the Payments after payment by the Executive greater economic benefit notwithstanding that all or some portion of the Excise Tax, to (Y) the net after-tax benefit to the Executive if the Payments had been limited to the extent necessary to avoid being Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the amount calculated under (X) above is less than Payment equals the amount calculated under (Y) above, then the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The , such reduction of shall occur in the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to manner that results in the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Controlgreatest economic benefit for Employee, as determined by the Determination Firm (as defined in Section 3.7(b)(ii)) below). For purposes If more than one method of reduction shall result in the same economic benefit, the items so reduced shall be reduced pro rata. If deemed necessary for compliance with Section 409A (as defined below), any reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are such “deferred compensation.” To the extent any such payment is to be made over time (e.g., in installments), then the payments shall be reduced in reverse chronological order. Further, to the extent that any Payments are submitted to the Company’s stockholders for approval in accordance with U.S. Treasury Regulation Section 1.280G-1 Q&A 7, any reduction in, or waiver of, such Payments required by such vote will be applied without any application of discretion by Employee and in the order prescribed by this Section 9. In no event shall the Company or any shareholder be liable to Employee for any amounts not paid as a result of the operation of this Section 3.7, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 3.7, the “9.

Code Section 280G. If any of the payments or benefits received or to be received by the Executive (a) Notwithstanding anything in this Agreement to the contraryincluding, in the event it shall be determined that without limitation, any payment or distribution by benefit received in connection with a Change in Control or the Company to or for the benefit Executive’s termination of the Executive (whether paid or payable or distributed or distributable employment, wither pursuant to the terms of this Agreement or any other plan, arrangement, agreement or otherwise) (all such benefits, payments or distributions are hereinafter payment collectively referred to herein as the “280G Payments”) would, if paidconstitute “parachute payment” within the meaning of Code Section 280G and would but for this Section, be subject to the excise tax imposed by under Code Section 4999 of the Code (the ““ Excise Tax”), then, then prior to making the making of any Payments to the Executive280G Payments, a calculation shall be made comparing (X1) the net after-tax benefit “Net Benefit” (as defined below) to the Executive of the 280G Payments after the payment by the Executive of the Excise Tax, Tax to (Y2) the net after-tax benefit Net Benefit to the Executive if the 280G Payments had been are limited to the extent necessary to avoid being subject to the Excise Tax. If Only if the amount calculated under (X1) above is less than the amount calculated under (Y2) above, then above will the 280G Payments shall be limited reduced to the minimum extent necessary to avoid being ensure that no portion of the 280G payments is subject to the Excise Tax (Tax. “Net Benefit” shall be the “Reduced Amount”). The reduction present value of the 280G Payments due hereundernet of all federal, if applicable, state and local income employment and excise taxes. Any such reduction made pursuant to this Section 7(e) shall be consistent with the requirements of Code Section 409A. All calculations and determinations under this Section 7(e) shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Control, as determined an independent accounting firm or independent tax counsel appointed by the Determination Firm (as defined in Section 3.7(b)(ii)) below). For purposes of this Section 3.7, present value Adtalem whose determination shall be determined in accordance with Section 280G(d)(4) of conclusive and binding on Adtalem and the Code. For purposes of this Section 3.7, the “Executive for all purposes.

Code Section 280G. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company Corporation to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as “Payments”) would, if paid, be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code (the “Excise Tax”)Code, then, prior to the making of any Payments to the ExecutiveEmployee, a calculation shall be made comparing (Xi) the net after-tax benefit to the Executive Employee of the Payments after payment by the Executive Employee of the Excise Tax, to (Yii) the net after-tax benefit to the Executive Employee if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (Xi) above is less than the amount calculated under (Yii) above, then the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Controlchange of control, as determined by the Determination Firm (as defined in Section 3.7(b)(ii)9(b) below). For purposes of this Section 3.7Section, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 3.79, the “Parachute Value” of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Code Section 280G. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company Corporation to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as “Payments”) would, if paid, be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code (the “Excise Tax”)Code, then, prior to the making of any Payments to the ExecutiveEmployee, a calculation shall be made comparing (Xi) the net after-tax benefit to the Executive Employee of the Payments after payment by the Executive Employee of the Excise Tax, to (Yii) the net after-tax benefit to the Executive Employee if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (Xi) above is less than the amount calculated under (Yii) above, then the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Controlchange of control, as determined by the Determination Firm (as defined in Section 3.7(b)(ii)9(b) below). For purposes of this Section 3.79, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 3.79, the “Parachute Value” of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 9, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Corporation and Employee (the “Determination Firm”) which shall provide detailed supporting calculations both to the Corporation and Employee within 15 business days of the receipt of notice from Employee that a Payment is

Code Section 280G. If any of the payments or benefits received or to be received by the Executive (a) Notwithstanding anything in this Agreement to the contraryincluding, in the event it shall be determined that without limitation, any payment or distribution by benefit received in connection with a Change in Control or the Company to or for the benefit Executive’s termination of the Executive (whether paid or payable or distributed or distributable employment, wither pursuant to the terms of this Agreement or any other plan, arrangement, agreement or otherwise) (all such benefits, payments or distributions are hereinafter payment collectively referred to herein as the “280G Payments”) would, if paidconstitute “parachute payment” within the meaning of Code Section 280G and would but for this Section, be subject to the excise tax imposed by under Code Section 4999 of the Code (the ““ Excise Tax”), then, then prior to making the making of any Payments to the Executive280G Payments, a calculation shall be made comparing (X1) the net after-tax benefit “Net Benefit” (as defined below) to the Executive of the 280G Payments after the payment by the Executive of the Excise Tax, Tax to (Y2) the net after-tax benefit Net Benefit to the Executive if the 280G Payments had been are limited to the extent necessary to avoid being subject to the Excise Tax. If Only if the amount calculated under (X1) above is less than the amount calculated under (Y2) above, then above will the 280G Payments shall be limited reduced to the minimum extent necessary to avoid being ensure that no portion of the 280G payments is subject to the Excise Tax (Tax. “Net Benefit” shall be the “Reduced Amount”). The reduction present value of the 280G Payments due hereundernet of all federal, if applicable, state and local income employment and excise taxes Any such reduction made pursuant to this Section 7(e) shall be consistent with the requirements of Code Section 409A. All calculations and determinations under this Section 7(e) shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Control, as determined an independent accounting firm or independent tax counsel appointed by the Determination Firm (as defined in Section 3.7(b)(ii)) below). For purposes of this Section 3.7, present value Adtalem whose determination shall be determined in accordance with Section 280G(d)(4) of conclusive and binding on Adtalem and the Code. For purposes of this Section 3.7, the “Executive for all purposes.

Code Section 280G. (a) 6.1 Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as “Payments”) would, if paid, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)) imposed by Code Section 4999, then, then prior to the making of any of the Payments to the Executive, a calculation shall be made comparing (Xi) the net after-tax benefit to the Executive Executive, of the Payments after payment by the Executive of the Excise Tax, to (Yii) the net after-tax benefit to the Executive Executive, if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (Xi) above is less than the amount calculated under (Yii) above, then {OR055508.DOCX; 1} the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Controlchange of control, as determined by the Determination Firm (as defined in Section 3.7(b)(ii)subsection (b) below). For purposes of this Section 3.76, present value shall be determined in accordance with Code Section 280G(d)(4) of the Code). For purposes of this Section 3.76, the “Parachute Value” of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Code Section 280G(b)(2), as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Code Section 280G. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any payment or distribution by the Company Employer to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as “Payments”) would, if paid, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, prior to the making of any Payments to the Executive, a calculation shall be made comparing (X) the net after-tax benefit to the Executive of the Payments after payment by the Executive of the Excise Tax, to (Y) the net after-tax benefit to the Executive if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (X) above is less than the amount calculated under (Y) above, then the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Control, as determined by the Determination Firm (as defined in Section 3.7(b)(ii10(b)(ii)) below). For purposes of this Section 3.710, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 3.710, the “

Code Section 280G. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any payment or distribution by the Company Employer to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as “Payments”) would, if paid, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, prior to the making of any Payments to the ExecutiveEmployee, a calculation shall be made comparing (X) the net after-tax benefit to the Executive Employee of the Payments after payment by the Executive Employee of the Excise Tax, to (Y) the net after-tax benefit to the Executive Employee if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (X) above is less than the amount calculated under (Y) above, then the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the Exhibit 10.12 “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Control, as determined by the Determination Firm (as defined in Section 3.7(b)(ii10(b)(ii)) below). For purposes of this Section 3.710, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 3.710, the “Parachute Value” of a Payment means the present value as of the date of the Change in Control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.

Code Section 280G. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company Corporation to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as “Payments”) would, if paid, be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code (the “Excise Tax”)Code, then, prior to the making of any Payments to the ExecutiveEmployee, a calculation shall be made comparing (Xi) the net after-tax benefit to the Executive Employee of the Payments after payment by the Executive Employee of the Excise Tax, to (Yii) the net after-tax benefit to the Executive Employee if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (Xi) above is less than the amount calculated under (Yii) above, then the Payments shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Controlchange of control, as determined by the Determination Firm (as defined in Section 3.7(b)(ii)9(b) below). For purposes of this Section 3.79, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 3.79, the “Parachute Value” of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 9, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Corporation and Employee (the “Determination Firm”) which shall provide detailed supporting calculations both to the Corporation and Employee within 15 business days of the receipt of notice from Employee that a Payment is due to be made, or such earlier time as is requested by the Corporation. All fees and expenses of the Determination Firm shall be borne solely by the Corporation. Any determination by the Determination Firm shall be binding upon the Corporation and Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 9 (“Underpayment”), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment