Common use of Code Section 280G Clause in Contracts

Code Section 280G. In the event that any payments, distributions, benefits, or entitlements of any type payable to Executive (the “Total Payments”) would (i) constitute “parachute payments” within the meaning of Section 280G of the Code (which will not include any portion of payments allocated to the restrictive covenant provisions of Section 7 hereof that are classified as payments of reasonable compensation for purposes of Section 280G of the Code), and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be either: (a) provided in full, or (b) provided as to such lesser extent as would result in no portion of such Total Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state, and local income taxes and the Excise Tax, results in Executive’s receipt on an after-tax basis of the greatest amount of the Total Payments, notwithstanding that all or some portion of the Total Payments may be subject to the Excise Tax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 25 shall be made in writing in good faith based on the advice of a nationally recognized accounting firm selected by the Company (with approval of Executive) (the “Accountants”). In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the Total Payments that are payable in cash under Section 5 and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 25, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably require to make a determination under this Section 25, and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 25.

Code Section 280G. In Notwithstanding anything in this Agreement or elsewhere to the event that any paymentscontrary, distributions, benefits, or entitlements if the aggregate of any type payable all amounts and benefits due to the Executive (or the Executive’s beneficiaries) under this Agreement or under any other plan, program, agreement or arrangement of the Company or any of its Affiliates (collectively, “Total PaymentsContingent Benefits”) ), would (i) constitute cause the Executive to have “parachute payments” within the meaning of as such term is defined in and under Code Section 280G G, and would result in the imposition of excise taxes pursuant to Section 4999 of the Code or loss of deduction pursuant to Code Section 280G, the Company will reduce such payments and benefits so that the Parachute Value of all Contingent Benefits, in the aggregate, equals the Safe Harbor Amount minus $1,000.00 (which the "Required Reduction"). All determinations with respect to this Section 18(b) will not include be made by an independent nationally-recognized United States public accounting firm chosen, and paid for, by the Company (the “Auditor”). Notwithstanding any portion of payments allocated provision to the restrictive covenant provisions of Section 7 hereof contrary in this Agreement or elsewhere, any Required Reduction will be implemented as follows: first, by reducing any cash payments to be made to the Executive; second, by cancelling any outstanding equity or equity-based compensation awards that are classified subject to performance vesting (“Performance-Based Equity”), the performance goals for which have not been met as payments of reasonable compensation for purposes of Section 280G of the Code)Termination Date or, if later, the Change in Control date; third, by cancelling the acceleration of vesting of (i) any of the Executive’s outstanding Performance-Based Equity the performance goals for which were met as of the Termination Date or, if later, the Change in Control date, and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 any of the Code (Executive’s other outstanding equity awards; and fourth, by eliminating the “Excise Tax”), then the Total Payments shall be either: (a) provided in full, or (b) provided as to such lesser extent as would result in no portion of such Total Payments being subject to the Excise Tax, whichever Company’s payment of the foregoing amounts, taking into account premiums for any post-termination continuation of health coverage benefits for the applicable federal, state, and local income taxes and Executive. All determinations made by the Excise Tax, results in Executive’s receipt on an after-tax basis of the greatest amount of the Total Payments, notwithstanding that all or some portion of the Total Payments may Auditor under this Section 18(b) will be subject to the Excise Tax. Unless binding upon the Company and the Executive otherwise agree in writing, any determination required under and will be made as soon as reasonably practicable following the event giving rise to the Contingent Benefits. The following terms will have the following meanings for purposes of this Section 25 shall be made in writing in good faith based on the advice of a nationally recognized accounting firm selected by the Company (with approval of Executive) (the “Accountants”). In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the Total Payments that are payable in cash under Section 5 and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 25, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably require to make a determination under this Section 25, and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 25.18(b):

Code Section 280G. In To the event extent that any paymentsamount payable to you hereunder, distributionswhen combined with any other payment or benefit (collectively, benefitsthe “Payments”, or entitlements which shall include, without limitation, the vesting of any type payable to Executive equity awards or other non-cash benefit or property) that could be considered a “parachute payment,” as such term is defined under Section 280G of the Internal Revenue Code of 1986, as amended (the “Total PaymentsCode”) would (i) constitute “parachute payments” within ), exceed the meaning limitations of Section 280G of the Code (which such that an excise tax will not include any portion of payments allocated to the restrictive covenant provisions of be imposed under Section 7 hereof that are classified as payments of reasonable compensation for purposes of Section 280G 4999 of the Code), the Payments shall be either (a) reduced (but not below zero) so that the present value of such total Payments received by you will be one dollar ($1.00) less than three times your “base amount” (as defined in Section 280G(b)(3) of the Code) and (ii) but for this paragraph would so that no portion of such Payments received by you will be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Total Payments such parachute payments shall be eitherreduced in the following order: (ai) provided in fullany portion of the cash severance payable hereunder that is not “nonqualified deferred compensation” for purposes of Code Section 409A, (ii) any benefits continuation valued as parachute payments, (iii) any accelerated vesting of any equity awards and (iv) any portion of the cash severance payable hereunder and any other cash amounts that are “nonqualified deferred compensation” for purposes of Code Section 409A, or (b) provided as to such lesser extent as would result paid in no portion of such Total Payments being subject to the Excise Taxfull, whichever of (a) or (b) produces the foregoing amounts, better net after tax position to you (taking into account the any applicable federal, state, and local income taxes and the Excise Tax, results in Executive’s receipt on an after-excise tax basis under Section 4999 of the greatest amount of the Total Payments, notwithstanding that all or some portion of the Total Payments may be subject to the Excise Tax. Unless the Company Code and Executive otherwise agree in writing, any determination required under this Section 25 shall be made in writing in good faith based on the advice of a nationally recognized accounting firm selected by the Company (with approval of Executive) (the “Accountants”). In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the Total Payments that are payable in cash under Section 5 and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kindother applicable taxes). For purposes of making the calculations and determinations required by this Section 2522, the Accountants Company may engage an independent accounting firm or independent counsel to make reasonable assumptions such determinations, which shall be conclusive and approximations concerning applicable taxes binding on the Company and you, and such independent accounting firm or independent counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application applicable of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably require to make a determination under this Section 25, and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 25.

Code Section 280G. In Notwithstanding any other provision of this Agreement to the event contrary, if the payments or benefits that the Executive would receive from the Company under this Agreement or otherwise (including, without limitation, any paymentspayment, distributionsbenefit, benefits, entitlement or entitlements distribution paid or provided by the person or entity effecting a change in control) in connection with a change of any type payable to Executive ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) (the “Total Payments”) would (ia) constitute “parachute payments” within the meaning of Section 280G of the Code (which will not include any portion of payments allocated to the restrictive covenant provisions of Section 7 hereof that are classified as payments of reasonable compensation for purposes of Section 280G of the Code), and (iib) but for this paragraph Section 24, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Executive will be entitled to receive either (i) the full amount of the Total Payments shall be either: (a) provided in full, or (b) provided as to such lesser extent as would result in no portion of such Total Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the full value of any equity awards), or (ii) a portion of the Total Payments having a value equal to $1 less than three (3) times the Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income and employment taxes and the Excise Taxexcise tax imposed by Section 4999 of the Code, results in the receipt by the Executive’s receipt , on an after-tax basis basis, of the greatest amount portion of the Total Payments, notwithstanding that all or some portion of the Total Payments may be subject to the Excise Tax. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 25 24 shall be made in writing in good faith based on the advice of a nationally recognized by an accounting firm selected by the Executive and reasonably acceptable to the Company (with approval of Executive) (the “Accountants”). In the event of a reduction of benefits hereunder, benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding for all purposes upon the portion Company and the Executive. The Company shall be responsible for and promptly pay all fees and expenses of the Total Payments that are payable Accountants in cash under Section 5 and then by reducing connection with or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)arising from the determinations contemplated hereby. For purposes of making the calculations required by this Section 2524, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Company and Executive shall furnish If there is a reduction pursuant to this Section 24 of the Total Payments to be delivered to the Accountants Executive, such information reduction shall occur in the following order: (i) any cash severance payable by reference to Base Salary or seasonal bonus, (ii) any other cash amount payable to the Executive, (iii) any benefit valued as a “parachute payment,” and documents as (iv) acceleration of vesting of any equity award. For the Accountants may reasonably require avoidance of doubt, in the event additional Total Payments are made to make a determination under the Executive after the application of the cutback in this Section 2524, and which additional Total Payments result in the cutback no longer being applicable, the Company shall bear pay to the cost Executive an additional amount equal to the value of all fees the Total Payments which were originally cutback. The Accountants charge in connection with shall determine at the end of each calendar year whether any calculations contemplated by this Section 25.such restoration is necessary based on additional Total Payments (if any) made during such calendar year and shall pay such restoration within ninety (90) days following the last day of such calendar year. * * * * *

Code Section 280G. In the event that any payments, distributions, benefits, the benefits provided for in this Agreement or entitlements of any type otherwise payable to Executive you (the “Total Payments”) would (ia) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (which will not include any portion of payments allocated to the restrictive covenant provisions of Section 7 hereof that are classified as payments of reasonable compensation for purposes of Section 280G of the “Code), ”) and (iib) but for this paragraph Section 6, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Total Payments then, at your discretion, your benefits under this Agreement shall be either: payable either (ai) provided in full, or (bii) provided as to such lesser extent as amount which would result in no portion of such Total Payments benefits being subject to the Excise Taxexcise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in Executive’s the receipt by you on an after-tax basis basis, of the greatest amount of the Total Paymentsbenefits under this Agreement, notwithstanding that all or some portion of the Total Payments such benefits may be taxable under Section 4999 of the Code. Any reduction shall be made as a pro-rata reduction of cash payments subject to Section 409A of the Excise TaxCode as deferred compensation and cash payments not subject to Section 409A of the Code. Reduction in cash payments shall be made pro-rata between and among benefits which are subject to Section 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and Executive you otherwise agree in writing, any determination required under this Section 25 6 shall be made in writing in good faith based on the advice of a nationally recognized accounting firm selected by the Company (with approval of Executive) Company’s independent public accountants (the “Accountants”). In the event of a reduction of benefits hereunder, benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding upon you and the portion of the Total Payments that are payable in cash under Section 5 and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 256, 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, and other applicable legal authority. The Company and Executive you shall furnish to the Accountants with such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 25, and the 6. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 256.