Common use of Limitation on Payments and Benefits Clause in Contracts

Limitation on 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 this Agreement, together with any other payments, benefits or awards which you have the right to receive from the Company, or any corporation 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 ("Affiliate"), constitute an "excess parachute payment" (as defined in section 280G(b) of the Code), such payments, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company or its Affiliates, may be reduced, eliminated, modified or waived to the extent necessary to prevent all, or any portion, of such payments, benefits or awards from becoming "excess parachute payments" and therefore subject to the excise tax imposed under section 4999 of the Code. You will have the sole right and discretion to determine whether the payments, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company, should be reduced, whether or not such other agreement with the Company or an Affiliate expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that "payments" under such agreement be reduced). You will also have the right to designate the particular payments, benefits or awards that are to be reduced, eliminated, modified or waived; provided that no such adjustment will be made if it results in additional expense to the Company in excess of expenses the Company would have experienced if no adjustment had been made. The determination as to whether any such decrease in the payments or benefits is necessary must be made in good faith by legal counsel or a certified public accountant selected by you and reasonably acceptable to the Company, and such determination will be conclusive and binding upon you and the Company. The Company will pay or reimburse you on demand for the reasonable fees, costs and expenses of the counsel or accountant selected to make the determinations under this clause (c).

Limitation on Payments and Benefits. Notwithstanding anything any other provisions of this Agreement, in this Agreement to the contrary, if event that any of the payments payment or benefits benefit received or to be made or provided received by the Executive in connection with a Change in Control or Executive’s Employment Termination (whether pursuant to the terms of this AgreementAgreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits being hereinafter called “Total Payments”) would be an “excess parachute payment” pursuant to Code Section 280G or any successor or substitute provision of the Code, with the effect that Executive would be liable for the payment of the excise tax described in Code Section 4999 or any successor or substitute provision of the Code, or any interest or penalties are incurred by Executive with respect to such Total Payments (such excise tax, together with any other paymentssuch interest and penalties, benefits or awards which you have are hereinafter collectively referred to as the right to receive from the Company, or any corporation 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 ("Affiliate"“Excise Tax”), constitute an "excess parachute payment" (as defined then, after taking into account any reduction in section 280G(b) the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the Code), such payments, benefits or awards to be made or cash payments provided in connection with Sections 1 and 2 of this Agreement, or any other agreement between you and the Company or its Affiliates, may Agreement shall first be reduced, eliminatedand the non-cash payments and benefits shall thereafter be reduced, modified or waived to the extent necessary to prevent all, or any portion, so that no portion of such payments, benefits or awards from becoming "excess parachute payments" and therefore the Total Payments is subject to the excise tax imposed under section 4999 of Excise Tax. Notwithstanding the Code. You will have the sole right and discretion to determine whether the paymentsforegoing, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company, should be reduced, whether or not such other agreement with the Company or an Affiliate expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that "payments" under such agreement be reduced). You will also have the right to designate the particular payments, benefits or awards that are to be reduced, eliminated, modified or waived; provided that no such adjustment will be made if it results in additional expense to the Company in excess of expenses the Company would have experienced if no adjustment had been made. The determination as to whether any such decrease in the payments or benefits is necessary must be made in good faith by legal counsel or a certified public accountant selected by you and reasonably acceptable to the Company, and such determination under this Agreement will be conclusive and binding upon you and reduced unless: (i) the Company. The Company will pay or reimburse you on demand for the reasonable fees, costs and expenses net amount of the counsel or accountant selected Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than (ii) the excess of (A) the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), over (B) the amount of Excise Tax to make which the determinations under this clause (c)Executive would be subject in respect of such unreduced Total Payments.

Limitation on Payments and Benefits. Notwithstanding anything any other provisions of this Agreement, in this Agreement to the contrary, if event that any of the payments payment or benefits benefit received or to be made or provided received by the Executive in connection with a Change in Control or Executive’s Employment Termination (whether pursuant to the terms of this AgreementAgreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits being hereinafter called “Total Payments”) would be an “excess parachute payment” pursuant to Code Section 280G or any successor or substitute provision of the Code, with the effect that Executive would be liable for the payment of the excise tax described in Code Section 4999 or any successor or substitute provision of the Code, or any interest or penalties are incurred by Executive with respect to such Total Payments (such excise tax, together with any other paymentssuch interest and penalties, benefits or awards which you have are hereinafter collectively referred to as the right to receive from the Company, or any corporation 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 ("Affiliate"“Excise Tax”), constitute an "excess parachute payment" (as defined then, after taking into account any reduction in section 280G(b) the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the Code), such payments, benefits or awards to be made or cash payments provided in connection with Section 1 of this Agreement, or any other agreement between you and the Company or its Affiliates, may Agreement shall first be reduced, eliminatedand the non-cash payments and benefits shall thereafter be reduced, modified or waived to the extent necessary to prevent all, or any portion, so that no portion of such payments, benefits or awards from becoming "excess parachute payments" and therefore the Total Payments is subject to the excise tax imposed under section 4999 of Excise Tax. Notwithstanding the Code. You will have the sole right and discretion to determine whether the paymentsforegoing, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company, should be reduced, whether or not such other agreement with the Company or an Affiliate expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that "payments" under such agreement be reduced). You will also have the right to designate the particular payments, benefits or awards that are to be reduced, eliminated, modified or waived; provided that no such adjustment will be made if it results in additional expense to the Company in excess of expenses the Company would have experienced if no adjustment had been made. The determination as to whether any such decrease in the payments or benefits is necessary must be made in good faith by legal counsel or a certified public accountant selected by you and reasonably acceptable to the Company, and such determination under this Agreement will be conclusive and binding upon you and reduced unless: (i) the Company. The Company will pay or reimburse you on demand for the reasonable fees, costs and expenses net amount of the counsel or accountant selected Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than (ii) the excess of (A) the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), over (B) the amount of Excise Tax to make which the determinations under this clause (c)Executive would be subject in respect of such unreduced Total Payments.

Limitation on Payments and Benefits. Notwithstanding anything any other provisions of this Agreement, in this Agreement to the contrary, if event that any of the payments payment or benefits benefit received or to be made or provided received by the Executive in connection with a Change in Control or Executive's Employment Termination (whether pursuant to the terms, of this Agreement, together with Agreement or any other paymentsplan, benefits arrangement or awards which you have the right to receive from agreement with the Company, any Person whose actions result in a Change in Control or any corporation which is a member of an "Person affiliated group" (as defined in section 1504(a) of the Code without regard to section 1504(b) of the Code) of which with the Company is a member or such Person) (all such payments and benefits being hereinafter called "AffiliateTotal Payments")) would, constitute be an "excess parachute payment" (as defined in section 280G(b) pursuant to Code Section 280G or any successor or substitute provision of the Code), such payments, benefits with the effect that Executive would be liable for the payment of the excise tax described in Code Section 4999 or awards to be made any successor or provided in connection with this Agreementsubstitute provision of the Code, or any interest or penalties are incurred by Executive with respect to such Total Payments (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other agreement between you plan, arrangement or agreement, the cash payments provided in Sections 1 and the Company or its Affiliates, may 2 of this Agreement shall first be reduced, eliminatedand the noncash payments and benefits shall thereafter be reduced, modified or waived to the extent necessary to prevent all, or any portion, so that no portion of such payments, benefits or awards from becoming "excess parachute payments" and therefore the Total Payments is subject to the excise tax imposed Excise Tax; provided, however, that Executive may elect (at any time prior to the payment of any Total Payment under section 4999 this Agreement) to have the noncash payments and benefits reduced (or eliminated) prior to any reduction of the Code. You will have the sole right and discretion to determine whether the payments, benefits or awards to be made or provided in connection with cash payments under this Agreement. Notwithstanding the foregoing, or any other agreement between you and the Company, should be reduced, whether or not such other agreement with the Company or an Affiliate expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that "payments" under such agreement be reduced). You will also have the right to designate the particular payments, benefits or awards that are to be reduced, eliminated, modified or waived; provided that no such adjustment will be made if it results in additional expense to the Company in excess of expenses the Company would have experienced if no adjustment had been made. The determination as to whether any such decrease in the payments or benefits is necessary must be made in good faith by legal counsel or a certified public accountant selected by you and reasonably acceptable to the Company, and such determination under this Agreement will be conclusive and binding upon you and reduced unless: (i) the Company. The Company will pay or reimburse you on demand for the reasonable fees, costs and expenses net amount of the counsel or accountant selected Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than (ii) the excess of (A) the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), over (B) the amount of Excise Tax to make which the determinations under this clause (c)Executive would be subject in respect of such unreduced Total Payments.

Limitation on Payments and Benefits. Notwithstanding anything in any provision of this ----------------------------------- Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an "Excess Parachute Payment," within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment except that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise that is required pursuant to the preceding sentence shall be made or provided in connection with this Agreement, together with any other payments, benefits or awards which you have at the right to receive from expense of the Company, if requested by the Executive or any corporation 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 ("Affiliate"), constitute an "excess parachute payment" (as defined in section 280G(b) of the Code), such payments, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company or its Affiliates, may be reduced, eliminated, modified or waived to the extent necessary to prevent all, or any portion, of such payments, benefits or awards from becoming "excess parachute payments" and therefore subject to the excise tax imposed under section 4999 of the Code. You will have the sole right and discretion to determine whether the payments, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company, should by the Company's independent accountants. The fact that the Executive's right to payments or benefits may be reduced, whether or not such other agreement with the Company or an Affiliate expressly addresses the potential application of Sections 280G or 4999 reduced by reason of the Code (includinglimitations contained in this Section 12 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 12, without limitation, that "payments" under such agreement the Executive shall be reduced). You will also have the right entitled to designate the particular payments, payments and/or benefits or awards that are to be reduced, eliminated, modified or waived; provided that no such adjustment will be made if it results so reduced in additional expense order to the Company in excess of expenses the Company would have experienced if no adjustment had been made. The determination as give effect to whether any such decrease in the payments or benefits is necessary must be made in good faith by legal counsel or a certified public accountant selected by you and reasonably acceptable to the Company, and such determination will be conclusive and binding upon you and the Companythis Section 12. The Company will pay or reimburse you on demand for shall provide the reasonable fees, costs and expenses Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the counsel or accountant selected to make Termination Date, the determinations under this clause (c)Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding anything in any ----------------------------------- provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an "Excess Parachute Payment," within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment except that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise that is required pursuant to the preceding sentence shall be made or provided in connection with this Agreement, together with any other payments, benefits or awards which you have at the right to receive from expense of the Company, if requested by the Executive or any corporation 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 ("Affiliate"), constitute an "excess parachute payment" (as defined in section 280G(b) of the Code), such payments, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company or its Affiliates, may be reduced, eliminated, modified or waived to the extent necessary to prevent all, or any portion, of such payments, benefits or awards from becoming "excess parachute payments" and therefore subject to the excise tax imposed under section 4999 of the Code. You will have the sole right and discretion to determine whether the payments, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company, should by the Company's independent accountants. The fact that the Executive's right to payments or benefits may be reduced, whether or not such other agreement with the Company or an Affiliate expressly addresses the potential application of Sections 280G or 4999 reduced by reason of the Code (includinglimitations contained in this Section 5 shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 5, without limitation, that "payments" under such agreement the Executive shall be reduced). You will also have the right entitled to designate the particular payments, payments and/or benefits or awards that are to be reduced, eliminated, modified or waived; provided that no such adjustment will be made if it results so reduced in additional expense order to the Company in excess of expenses the Company would have experienced if no adjustment had been made. The determination as give effect to whether any such decrease in the payments or benefits is necessary must be made in good faith by legal counsel or a certified public accountant selected by you and reasonably acceptable to the Company, and such determination will be conclusive and binding upon you and the Companythis Section 5. The Company will pay or reimburse you on demand for shall provide the reasonable fees, costs and expenses Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the counsel or accountant selected to make Termination Date, the determinations under this clause (c)Company may effect such reduction in any manner it deems appropriate.

Limitation on Payments and Benefits. Notwithstanding anything any other provisions of this Agreement, in this Agreement to the contrary, if event that any of the payments payment or benefits benefit received or to be made or provided received by the Executive in connection with a Change in Control or Executive's Employment Termination (whether pursuant to the terms of this Agreement, together with Agreement or any other paymentsplan, benefits arrangement or awards which you have the right to receive from agreement with the Company, any Person whose actions result in a Change in Control or any corporation which is a member of an "Person affiliated group" (as defined in section 1504(a) of the Code without regard to section 1504(b) of the Code) of which with the Company is a member or such Person) (all such payments and benefits being hereinafter called "AffiliateTotal Payments"), constitute ) would be an "excess parachute payment" (as defined in section 280G(b) pursuant to Code Section 280G or any successor or substitute provision of the Code), such payments, benefits with the effect that Executive would be liable for the payment of the excise tax described in Code Section 4999 or awards to be made any successor or provided in connection with this Agreementsubstitute provision of the Code, or any interest or penalties are incurred by Executive with respect to such Total Payments (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other agreement between you plan, arrangement or agreement, the cash payments provided in Sections 1 and the Company or its Affiliates, may 2 of this Agreement shall first be reduced, eliminatedand the noncash payments and benefits shall thereafter be reduced, modified or waived to the extent necessary to prevent all, or any portion, so that no portion of such payments, benefits or awards from becoming "excess parachute payments" and therefore the Total Payments is subject to the excise tax imposed Excise Tax; provided, however, that Executive may elect (at any time prior to the payment of any Total Payment under section 4999 this Agreement) to have the noncash payments and benefits reduced (or eliminated) prior to any reduction of the Code. You will have the sole right and discretion to determine whether the payments, benefits or awards to be made or provided in connection with cash payments under this Agreement. Notwithstanding the foregoing, or any other agreement between you and the Company, should be reduced, whether or not such other agreement with the Company or an Affiliate expressly addresses the potential application of Sections 280G or 4999 of the Code (including, without limitation, that "payments" under such agreement be reduced). You will also have the right to designate the particular payments, benefits or awards that are to be reduced, eliminated, modified or waived; provided that no such adjustment will be made if it results in additional expense to the Company in excess of expenses the Company would have experienced if no adjustment had been made. The determination as to whether any such decrease in the payments or benefits is necessary must be made in good faith by legal counsel or a certified public accountant selected by you and reasonably acceptable to the Company, and such determination under this Agreement will be conclusive and binding upon you and reduced unless: (i) the Company. The Company will pay or reimburse you on demand for the reasonable fees, costs and expenses net amount of the counsel or accountant selected Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than (ii) the excess of (A) the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), over (B) the amount of Excise Tax to make which the determinations under this clause (c)Executive would be subject in respect of such unreduced Total Payments.

Limitation on Payments and Benefits. Notwithstanding anything in any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment except that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). The determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise that is required pursuant to the preceding sentence shall be made or provided in connection with this Agreement, together with any other payments, benefits or awards which you have at the right to receive from expense of the Company, if requested by the Employee or any corporation 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 ("Affiliate"), constitute an "excess parachute payment" (as defined in section 280G(b) of the Code), such payments, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company or its Affiliates, may be reduced, eliminated, modified or waived to the extent necessary to prevent all, or any portion, of such payments, benefits or awards from becoming "excess parachute payments" and therefore subject to the excise tax imposed under section 4999 of the Code. You will have the sole right and discretion to determine whether the payments, benefits or awards to be made or provided in connection with this Agreement, or any other agreement between you and the Company, should by the Company’s independent accountants. The fact that the Employee’s right to payments or benefits may be reduced, whether or not such other agreement with the Company or an Affiliate expressly addresses the potential application of Sections 280G or 4999 reduced by reason of the Code (includinglimitations contained in this Section 8C shall not of itself limit or otherwise affect any other rights of the Employee other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 8C, without limitation, that "payments" under such agreement the Employee shall be reduced). You will also have the right entitled to designate the particular payments, payments and/or benefits or awards that are to be reducedso reduced in order to give effect to this Section 8C. The Company shall provide the Employee with all information reasonably requested by the Employee to permit the Employee to make such designation. In the event that the Employee fails to make such designation within 10 business days of the Termination Date, eliminated, modified or waived; provided that no such adjustment will be made if it results in additional expense to the Company may effect such reduction in excess of expenses the Company would have experienced if no adjustment had been made. The determination as to whether any such decrease in the payments or benefits is necessary must be made in good faith by legal counsel or a certified public accountant selected by you and reasonably acceptable to the Company, and such determination will be conclusive and binding upon you and the Company. The Company will pay or reimburse you on demand for the reasonable fees, costs and expenses of the counsel or accountant selected to make the determinations under this clause (c)manner it deems appropriate.