Common use of Section 280G Best Pay Cap Clause in Contracts

Section 280G Best Pay Cap. Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 7 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any other plan, arrangement or agreement other than this Agreement, the Total Payments shall be reduced as set forth herein, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net present value of the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments assuming the highest marginal tax rates for purposes of such calculation) is greater than or equal to (B) the net present value of the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments assuming the highest marginal tax rates for purposes of such calculation and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). If a reduction in the Total Payments is required by Section 7(f), the reduction shall occur in the following order: reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards which do not receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall be cancelled in the reverse order of the grant date of Employee’s stock awards); reduction of employee benefits; and cancellation of accelerated vesting of stock awards which do receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall be cancelled in the reverse order of the grant date of Employee’s stock awards); provided, that with each category the reduction shall be done on a basis resulting in the highest amount retained by the Employee; and provided, further, that to the extent permitted by Section 409A of the Code (“Code Section 409A”) and Sections 280G and 4999 of the Code, if a different reduction procedure would be permitted without violating Code Section 409A or losing the benefit of the reduction under Sections 280G and 4999 of the Code, the Employee may designate a different order of reduction.

Section 280G Best Pay Cap. Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 7 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any such other plan, arrangement or agreement other than this Agreementagreement, the Total Payments shall be reduced as set forth herein, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net present value of the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments assuming and after taking into account the highest marginal tax rates for purposes phase out of itemized deductions and personal exemptions attributable to such calculationreduced Total Payments) is greater than or equal to (B) the net present value of the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments assuming the highest marginal tax rates for purposes of such calculation and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If a reduction in the The Total Payments is required by Section 7(f), the reduction shall occur be reduced in the following order: first, reduction of any non-cash payments (employee benefits, which shall occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the date on which such cash payments would otherwise event triggering the Excise Tax will be made with the cash payments that would otherwise first benefit to be made last being reduced first)reduced; second, cancellation of the grant or accelerated vesting of stock awards equity awards, which do not receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall be cancelled occur in the reverse order of the grant date of Employee’s stock awardsgrant for such equity awards (i.e., the vesting of the most recently granted equity awards will be reduced first); and third, reduction or repayment of employee benefitscash payments, which shall occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first cash payment to be reduced; and in all cases, unpaid amounts shall be reduced prior to the repayment or cancellation of accelerated vesting of stock awards which do receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall be cancelled in the reverse order of the grant date of Employee’s stock awards)previously paid amounts; provided, that with each category the reduction shall be done on a basis resulting in the highest amount retained by the Employee; and provided, further, that to the extent permitted by Section 409A of the Code (“Code Section 409A”) and Sections 280G and 4999 of the Code, if a different reduction procedure would be permitted without violating Code Section 409A or losing the benefit of the reduction under Sections 280G and 4999 of the Code, the Employee may designate a different order of reduction.

Section 280G Best Pay Cap. Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 7 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any other plan, arrangement or agreement other than this Agreement, the Total Payments shall be reduced as set forth herein, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net present value of the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments assuming the highest marginal tax rates for purposes of such calculation) is greater than or equal to (B) the net present value of the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments assuming the highest marginal tax rates for purposes of such calculation and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). If a reduction in the Total Payments is required by this Section 7(f), the reduction shall occur in the following order: reduction of cash payments (in reverse order of the date on which such cash payments would otherwise have to be made with the cash payments that would otherwise be made made, last being reduced first); cancellation of accelerated vesting of stock equity awards which do not receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall to be cancelled in the reverse order of the grant date of Employee’s stock such awards); reduction of employee benefits; and cancellation of accelerated vesting of stock awards which do receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall be cancelled in the reverse order of the grant date of Employee’s stock awards); provided, that with each category the reduction shall be done on a basis resulting in the highest amount retained by the Employee; and provided, further, that to the extent permitted by Section 409A of the Code (“Code Section 409A”) and Sections 280G and 4999 of the Code, if a different reduction procedure would be permitted without violating Code Section 409A or losing the benefit of the reduction under Sections 280G and 4999 of the Code, the Employee may designate a different order of reduction.

Section 280G Best Pay Cap. Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 7 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any other plan, arrangement or agreement other than this Agreement, the Total Payments shall be reduced as set forth herein, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net present value of the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments assuming the highest marginal tax rates for purposes of such calculation) is greater than or equal to (B) the net present value of the amount of such Total Payments without such LA\2420372.9 reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments assuming the highest marginal tax rates for purposes of such calculation and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). If a reduction in the Total Payments is required by this Section 7(f), the reduction shall occur in the following order: reduction of cash payments (in reverse order of the date on which such cash payments would otherwise have to be made with the cash payments that would otherwise be made made, last being reduced first); cancellation of accelerated vesting of stock equity awards which do not receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall to be cancelled in the reverse order of the grant date of Employee’s stock such awards); reduction of employee benefits; and cancellation of accelerated vesting of stock awards which do receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall be cancelled in the reverse order of the grant date of Employee’s stock awards); provided, that with each category the reduction shall be done on a basis resulting in the highest amount retained by the Employee; and provided, further, that to the extent permitted by Section 409A of the Code (“Code Section 409A”) and Sections 280G and 4999 of the Code, if a different reduction procedure would be permitted without violating Code Section 409A or losing the benefit of the reduction under Sections 280G and 4999 of the Code, the Employee may designate a different order of reduction.

Section 280G Best Pay Cap. Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 7 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any other plan, arrangement or agreement other than this Agreement, the Total Payments shall be reduced as set forth herein, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net present value of the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments assuming the highest marginal tax rates for purposes of such calculation) is greater than or equal to (B) the net present value of the amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments assuming the highest marginal tax rates for purposes of such calculation and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). If a reduction in the Total Payments is required by Section 7(f), the reduction shall occur in the following order: reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards which do not receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall be cancelled in the reverse order of the grant date of Employee’s stock awards); reduction of employee benefits; and cancellation of accelerated vesting of stock awards which do receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall be cancelled in the reverse order of the grant date of Employee’s stock awards); provided, that with each category the reduction shall be done on a basis resulting in the highest amount retained by the Employee; and provided, further, that to the extent permitted by Section 409A of the Code (“Code Section 409A”) and Sections 280G and 4999 of the Code, if a different reduction procedure would be permitted without violating Code Section 409A or losing the benefit of the reduction under Sections 280G and 4999 of the Code, the Employee may designate a different order of reduction.

Section 280G Best Pay Cap. Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 7 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any other plan, arrangement or agreement other than this Agreement, the Total Payments shall be reduced as set forth herein, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net present value of the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments assuming the highest marginal tax rates for purposes of such calculation) is greater than or equal to (B) the net present value of the amount NY\2533556.8 of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments assuming the highest marginal tax rates for purposes of such calculation and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments). If a reduction in the Total Payments is required by this Section 7(f), the reduction shall occur in the following order: reduction of cash payments (in reverse order of the date on which such cash payments would otherwise have to be made with the cash payments that would otherwise be made made, last being reduced first); cancellation of accelerated vesting of stock equity awards which do not receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall to be cancelled in the reverse order of the grant date of Employee’s stock such awards); reduction of employee benefits; and cancellation of accelerated vesting of stock awards which do receive favorable treatment under Treasury Regulation Section 1.280G-1, Q&A-24(b) or (c) (with such accelerated vesting shall be cancelled in the reverse order of the grant date of Employee’s stock awards); provided, that with each category the reduction shall be done on a basis resulting in the highest amount retained by the Employee; and provided, further, that to the extent permitted by Section 409A of the Code (“Code Section 409A”) and Sections 280G and 4999 of the Code, if a different reduction procedure would be permitted without violating Code Section 409A or losing the benefit of the reduction under Sections 280G and 4999 of the Code, the Employee may designate a different order of reduction.