Common use of Internal Revenue Code Section 280G Clause in Contracts

Internal Revenue Code Section 280G. The terms of this Section 9 override and control any and all other terms of this Agreement to the extent such terms are inconsistent with this Section 9. In the event that it is determined that any payment or distribution of any type to or for the benefit of Executive (whether under this Agreement or otherwise) made by the Company, by any of its affiliates, by any person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of section 280G of the Code, and the regulations thereunder) or by any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”), would be subject to the excise tax imposed by section 4999 of the Code (or nondeductible by the Company under Code Section 280G) or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are collectively referred to as the “Excise Tax”), then the Total Payments shall be reduced so that the maximum amount of the Total Payments (after reduction) will be one dollar ($1.00) less than the amount that would cause the Total Payments to be subject to the Excise Tax; provided, however, that the Total Payments shall only be reduced to the extent the after-tax value of amounts received by Executive after application of the above reduction would exceed the after-tax value of the Total Payments received by the Executive without application of such reduction. In making any determination as to whether the Total Payments would be subject to an Excise Tax, consideration shall be given to whether any portion of the Total Payments could reasonably be considered, based on the relevant facts and circumstances, to be reasonable compensation for services rendered (whether before or after the consummation of the applicable Change in Control). If applicable, the particular payments that are to be reduced shall be subject to the mutual agreement of Executive and the Company, with a view to maximizing the value of the payments to Executive that are not reduced. All mathematical determinations and all determinations of whether any of the Total Payments are “parachute payments” (within the meaning of section 280G of the Code) that are required to be made under this section, shall be made by a nationally recognized independent audit or consulting firm selected by the Company (the “Accountants”), who shall provide their determination, together with detailed supporting calculations regarding the amount of any relevant matters, both to the Company and to Executive. Such determination shall be made by the Accountants using reasonable good faith interpretations of the Code. As expressly permitted by 26 CFR § 1.280G-1, Q/A-32, with respect to performing any present value calculations that are required in connection with this section, Executive and Company each affirmatively elect to utilize the Applicable Federal Rates (“AFR”) that are in effect as of the date first written above and the Accountants shall therefore use such AFRs in their determinations and calculations. The Company shall pay the fees and costs of the Accountants which are incurred in connection with this section.

Internal Revenue Code Section 280G. The terms of this Section 9 override and control any and all other terms of this Agreement to the extent such terms are inconsistent with this Section 9. In the event that it is determined that any payment or distribution of any type to or for the benefit of Executive (whether under this Agreement or otherwise) made by the Company, by any of its affiliates, by any person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's ’s assets (within the meaning of section 280G of the Code, and the regulations thereunder) or by any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”), would be subject to the excise tax imposed by section 4999 of the Code (or nondeductible by the Company under Code Section 280G) or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are collectively referred to as the “Excise Tax”), then the Total Payments shall be reduced so that the maximum amount of the Total Payments (after reduction) will be one dollar ($1.00) less than the amount that would cause the Total Payments to be subject to the Excise Tax; provided, however, that the Total Payments shall only be reduced to the extent the after-tax value of amounts received by Executive after application of the above reduction would exceed the after-tax value of the Total Payments received by the Executive without application of such reduction. In making any determination as to whether the Total Payments would be subject to an Excise Tax, consideration shall be given to whether any portion of the Total Payments could reasonably be considered, based on the relevant facts and circumstances, to be reasonable compensation for services rendered (whether before or after the consummation of the applicable Change in Control). If applicable, the particular payments that are to be reduced shall be subject to the mutual agreement of Executive and the Company, with a view to maximizing the value of the payments to Executive that are not reduced. All mathematical determinations and all determinations of whether any of the Total Payments are “parachute payments” (within the meaning of section 280G of the Code) that are required to be made under this section, shall be made by a nationally recognized independent audit or consulting firm selected by the Company (the “Accountants”), who shall provide their determination, together with detailed supporting calculations regarding the amount of any relevant matters, both to the Company and to Executive. Such determination shall be made by the Accountants using reasonable good faith interpretations of the Code. As expressly permitted by 26 CFR § 1.280G-1, Q/A-32, with respect to performing any present value calculations that are required in connection with this section, Executive and Company each affirmatively elect to utilize the Applicable Federal Rates (“AFR”) that are in effect as of the date first written above and the Accountants shall therefore use such AFRs in their determinations and calculations. The Company shall pay the fees and costs of the Accountants which are incurred in connection with this section.

Internal Revenue Code Section 280G. The terms of this Section 9 override and control (a) Notwithstanding any and all other terms provision of this Agreement or any other plan, arrangement or agreement to the extent such terms are inconsistent with this Section 9. In the event that it is determined that any payment or distribution of any type to or for the benefit of Executive (whether under this Agreement or otherwise) made by the Companycontrary, by if any of its affiliates, the payments or benefits provided or to be provided by any person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of section 280G of the Code, and the regulations thereunder) its affiliates to Executive or by any affiliate of such person, whether paid or payable or distributed or distributable for Executive’s benefit pursuant to the terms of this Agreement or otherwise (the such payments or benefits, “Total Covered Payments”)) constitute parachute payments within the meaning of Code Section 280G (“Parachute Payments”) and would, would but for this paragraph 16, be subject to the excise tax imposed by section 4999 of the Code (or nondeductible by the Company under Code Section 280G4999 (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such excise tax taxes (such excise taxcollectively, together with any such interest or penalties, are collectively referred to as the “Excise Tax”), then the Total Covered Payments shall be reduced so that the maximum amount either (a) delivered in full or (b) delivered to such lesser extent which would result in no portion of the Total Payments (after reduction) will be one dollar ($1.00) less than the amount that would cause the Total Payments to be such payments or benefits being subject to the Excise Tax; provided, howeverwhichever of the foregoing amounts, that taking into account the Total Payments shall only be reduced to applicable federal, state and local income taxes and the extent Excise Tax, results in the receipt by Executive on an after-tax value of amounts received by Executive after application basis, of the above reduction would exceed the after-tax value greatest amount of the Total Payments received by the Executive without application Covered Payments, notwithstanding that all or some portion of such reductionpayments or benefits may be taxable under Code Section 4999. In making any Any determination as to whether the Total Payments would be subject to an Excise Tax, consideration shall be given to whether any portion of the Total Payments could reasonably be considered, based on the relevant facts and circumstances, to be reasonable compensation for services rendered (whether before or after the consummation of the applicable Change in Control). If applicable, the particular payments that are to be reduced shall be subject to the mutual agreement of Executive and the Company, with a view to maximizing the value of the payments to Executive that are not reduced. All mathematical determinations and all determinations of whether any of the Total Payments are “parachute payments” (within the meaning of section 280G of the Code) that are required to be made under this section, paragraph 16 shall be made in writing in good faith by a nationally recognized an independent audit or consulting accounting firm selected by the Company that is reasonably acceptable to Executive (the “Accountants”), who which shall take into account all possible mitigating factors and shall provide their determination, together with detailed supporting calculations regarding the amount of any relevant matters, both to the Company and to Executive as requested by the Company or Executive. Such determination shall be made For purposes of making the calculations required by this paragraph 16, the Accountants using may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the CodeCode Section 280G and Code Section 4999. As expressly permitted by 26 CFR § 1.280G-1, Q/A-32, with respect The Company and Executive shall furnish to performing any present value calculations that are required in connection with this section, Executive and Company each affirmatively elect to utilize the Applicable Federal Rates (“AFR”) that are in effect as of the date first written above and the Accountants shall therefore use such AFRs information and documents as the Accountants may reasonably request in their determinations and calculationsorder to make a determination under this paragraph 16. The Company shall pay the be responsible for all fees and costs of expenses incurred by the Accountants which are incurred in connection with the calculations required by this sectionparagraph 16. (b) If a reduction in payments or benefits is required by subparagraph 16(a), such reduction shall be made in a manner that maximized Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Code 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.