Common use of Limitation on Change of Control Payments and Benefits Clause in Contracts

Limitation on Change of Control Payments and Benefits. Notwithstanding anything in this Agreement to the contrary, if any of the payments or benefits to be made or provided in connection with the Agreement, together with any other payments or benefits which Executive has the right to receive from the Company or any entity which is a member of an “affiliated group” (as defined in section 1504(a) of the Code without regard to section 1504(b) of the Code) of which the Company is a member constitute an “excess parachute payment” (as defined in section 280G(b) of the Code) and would be subject to the excise tax imposed by Section 4999 of the Code, then such benefits shall either be (i) delivered in full, or (ii) delivered as to such lesser extent necessary to prevent any portion of such payments or benefits from becoming nondeductible by the Company pursuant to section 280G of the Code or subject to the excise tax imposed under section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, the determination as to whether any such decrease in the payments or benefits to be made or provided in connection with this Agreement is necessary must be made in good faith by a nationally recognized accounting firm (the “Accounting Firm”), and such determination will be conclusive and binding upon Executive and 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 Company shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Executive will have the right to review and comment on any calculations prepared by the Accounting Firm and the Accounting Firm will make its determination with input from Executive (or his counsel) and provide its calculations, together with detailed supporting documentation, to the Company and Executive no later than thirty (30) calendar days after the date on which Executive’s right to a parachute payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. In addition, if and to the extent such right would not cause any payment or benefit to be subject to any adverse tax consequences under section 409A of the Code (including as a result of any “substitution” within the meaning of Treas. Reg. §1.409A-3(f)), Executive will have the right to designate the particular payments or benefits that are to be reduced or eliminated.

Limitation on Change of Control Payments and Benefits. Notwithstanding anything in this Agreement to the contrary, if any of the payments or benefits to be made or provided in connection with the Agreement, together with any other payments or benefits which Executive the Employee has the right to receive from the Company or any entity which is a member of an “affiliated group” (as defined in section 1504(a) of the Internal Revenue Code (the “Code”) without regard to section 1504(b) of the Code) of which the Company is a member constitute an “excess parachute payment” (as defined in section 280G(b) of the Code) and would ), the payments or benefits to be subject made or provided in connection with this Agreement will be reduced to the excise tax imposed by Section 4999 of the Code, then such benefits shall either be (i) delivered in full, or (ii) delivered as to such lesser extent necessary to prevent any portion of such payments or benefits from becoming nondeductible by the Company pursuant to section 280G of the Code or subject to the excise tax imposed under section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, the The determination as to whether any such decrease in the payments or benefits to be made or provided in connection with this Agreement is necessary must be made in good faith by a nationally recognized accounting firm (the “Accounting Firm”), and such determination will be conclusive and binding upon Executive Employee and 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 Company shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Executive will have In the right to review and comment on any calculations prepared by the Accounting Firm and the Accounting Firm will make its determination with input from Executive (or his counsel) and provide its calculationsevent that such a reduction is necessary, together with detailed supporting documentation, to the Company and Executive no later than thirty (30) calendar days after the date on which Executive’s right to a parachute payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. In addition, if and to the extent such right would not cause any payment or benefit to be subject to any adverse tax consequences under section 409A of the Code (including as a result of any “substitution” within the meaning of Treas. Reg. §1.409A-3(f)), Executive Employee will have the right to designate the particular payments or benefits that are to be reduced or eliminatedeliminated so that no portion of the payments or benefits to be made or provided to Employee in connection with the Agreement will be excess parachute payments subject to the deduction limitations under section 280G of the Code and the excise tax under section 4999 of the Code.

Limitation on Change of Control Payments and Benefits. (a) Notwithstanding anything in this Agreement to the contrary, and except as provided in Section 8.4(b), below, if any of the payments or benefits to be made or provided in connection with the Agreement, together with any other payments or benefits which Executive the Employee has the right to receive from the Company or any entity which is a member of an “"affiliated group” " (as defined in section 1504(a) of the Code without regard to section 1504(b) of the Code) of which the Company is a member constitute an “"excess parachute payment” " (as defined in section 280G(b) of the Code) and would ), the payments or benefits to be subject made or provided in connection with this Agreement will be reduced to the excise tax imposed by Section 4999 of the Code, then such benefits shall either be (i) delivered in full, or (ii) delivered as to such lesser extent necessary to prevent any portion of such payments or benefits from becoming nondeductible by the Company pursuant to section 280G of the Code or subject to the excise tax imposed under section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and Executive otherwise agree in writing, the The determination as to whether any such decrease in the payments or benefits to be made or provided in connection with this Agreement is necessary must be made in good faith by a nationally recognized accounting firm (the “"Accounting Firm”"), and such determination will be conclusive and binding upon Executive Employee and 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 Company shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Executive will have In the right to review and comment on any calculations prepared by the Accounting Firm and the Accounting Firm will make its determination with input from Executive (or his counsel) and provide its calculationsevent that such a reduction is necessary, together with detailed supporting documentation, to the Company and Executive no later than thirty (30) calendar days after the date on which Executive’s right to a parachute payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. In addition, if and to the extent such right would not cause any payment or benefit to be subject to any adverse tax consequences under section 409A of the Code (including as a result of any “substitution” within the meaning of Treas. Reg. §1.409A-3(f)), Executive Employee will have the right to designate the particular payments or benefits that are to be reduced or eliminatedeliminated so that no portion of the payments or benefits to be made or provided to Employee in connection with the Agreement will be excess parachute payments subject to the deduction limitations under section 280G of the Code and the excise tax under section 4999 of the Code.