Limitation on Change of Control Payments. Employee shall not be entitled to receive any Change of Control Action, as defined below, which would constitute an "excess parachute payment" for purposes of Code Section 280G, or any successor provision, and the regulations thereunder. In the event any Change of Control Action payable to Employee would constitute an "excess parachute payment," then the acceleration of the exercisability of such stock options and the payments to such Participant pursuant to this Paragraph 9 shall be reduced to the largest extent or amount as will result in no portion of such payments being subject to the excise tax imposed by Section 4999 of the Code. For purposes of this Paragraph 9, a "Change of Control Action" shall mean any payment, benefit or transfer of property in the nature of compensation paid to or for the benefit of Employee under any arrangement which is considered contingent on a Change of Control for purposes of Code Section 280G, including, without limitation, any and all salary, bonus, incentive, restricted stock, stock option, compensation or benefit plans, programs or other arrangements, and shall include benefits payable under this Agreement.
Limitation on Change of Control Payments. (a) If the Change of Control Severance Benefits together with any other payment or benefit Executive would receive pursuant to a Change of Control (collectively, “COC Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such COC Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the COC Payment that would result in no portion of the COC Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the COC Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the COC Payment notwithstanding that all or some portion of the COC Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the COC Payment equals the Reduced Amount, reduction shall occur in the following order (in case prorated between those not subject to Section 409A and those subject to Section 409A as deferred compensation): (1) reduction of cash payments; (2) cancellation of acceleration of vesting; and (3) reduction of non-cash employee benefits. In the event that acceleration of vesting is to be reduced, it shall be cancelled in the reverse order of the date of grant of the Equity Awards. To the extent any such benefit is to be provided over time, then the benefit shall be reduced in reverse chronological order.
Limitation on Change of Control Payments. This Section 5 applies only in the event the Company determines that this Agreement is subject to the limitations of Code Section 280G, or any successor provision, and the regulations issued thereunder. The intent of this Section 5 is to reduce any Change of Control Benefits, as defined below, that would otherwise be characterized as a “parachute payment” as defined in Code Section 280G and be subject to an additional excise tax under Code Section 4999 by the minimum amount necessary to avoid characterization as a parachute payment and avoid the imposition of the excise tax, but only if doing so would provide a more favorable net after-tax result to the Executive than if the Change in Control Benefits were not reduced and the Executive were subject to the excise tax.
Limitation on Change of Control Payments. In the event that you would, except for this sentence, be subject to a tax pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended, (the “Code”) or any successor provision that may be in effect, as a result of “parachute payments” (as that term is defined in Section 280G(b)(2)(A) of the Code) made pursuant to this Agreement and/or any other agreement, plan, program or arrangement, or a deduction would not be allowed to Delcath for all or any part of such payments by reason of Section 280G(a) of the Code, or any successor provision that may be in effect, such payments/benefits due under this Agreement will be reduced to reduce the aggregate “present value” (as that term is defined in Section 280G(d)(4) of the Code) of such payments to $1.00 less than an amount equal to three times your “base amount” (as that term is defined in Section 280G(b)(3) and (d)(1) and (2) of the Code) to the end that you are not subject to tax pursuant to Section 4999 and no deduction is disallowed by reason of Section 280G(a). However, the preceding sentence will not apply (i.e., no payments/benefits due under this Agreement will be reduced) if reducing the payments/benefits due under this Agreement would yield you more than $10,000 less of the aforementioned parachute payments after taxes (including, without limitation, all federal, state and local income taxes and excise taxes) than not reducing such payments/benefits.
Limitation on Change of Control Payments. The Participant shall not be entitled to receive any Change of Control Payment, as defined below, which would constitute a “parachute payment” for purposes of Code Section 280G, or any successor provision, and the regulations thereunder. In the event any Change of Control Payment payable to the Participant would constitute a “parachute payment,” the Participant shall have the right to designate those Change of Control Payments which would be reduced or eliminated so that the Participant will not receive a “parachute payment.” For purposes of this Paragraph 3(c), a “Change of Control Payment” shall mean any payment, benefit or transfer of property in the nature of compensation paid to or for the benefit of the Participant under any arrangement which is considered contingent on a Change of Control for purposes of Code Section 280G, including, without limitation, any and all of the Company’s salary, bonus, incentive, restricted stock, stock option, equity-based compensation or benefit plans, programs or other arrangements, and shall include the acceleration of this Award.
Limitation on Change of Control Payments. Executive shall not be entitled to receive any Change of Control Payment, as defined below, which would constitute a “parachute payment” for purposes of Code Section 280G, or any successor provision, and the regulations thereunder. In the event any Change of Control Payment payable to Executive would constitute a “parachute payment,” Executive shall have the right to designate those Change of Control Payments which would be reduced or eliminated so that Executive will not receive a “parachute payment.” For purposes of this Section 5, a “Change of Control Payment” shall mean any payment, benefit or transfer of property in the nature of compensation paid to or for the benefit of Executive under any arrangement which is considered contingent on a Change of Control for purposes of Code Section 280G, including, without limitation, any and all of the Company’s salary, bonus, incentive, restricted stock, stock option, equity-based compensation or benefit plans, programs or other arrangements, and shall include benefits payable under this Agreement.
Limitation on Change of Control Payments. Employee shall not be entitled to receive any Change of Control Action, as defined below, which would constitute an “excess parachute payment” for purposes of Code Section 280G, or any successor provision, and the regulations thereunder. In the event any Change of Control Action payable to Employee would constitute an “excess parachute payment,” then the acceleration
Limitation on Change of Control Payments. Executive shall not be entitled to receive any Change of Control Action (as defined below), which would constitute an “excess parachute payment” for purposes of Section 280G of the Code, or any successor provision, and the regulations thereunder. In the event that any Change of Control Action payable to Executive would constitute an “excess parachute payment,” then the acceleration of the exercisability of any stock options and the payments to Executive pursuant to this Paragraph 2.03 shall be reduced to the largest amount as will result in no portion of such payments being subject to the excise tax imposed by Section 4999 of the Code. For purposes of this Paragraph 2.03, a “Change of Control Action” shall mean any payment, benefit or transfer of property in the nature of compensation paid to or for the benefit of Executive under any arrangement which is considered contingent on a Change of Control for purposes of Section 280G of the Code, including, without limitation, any and all salary, bonus, incentive, restricted stock, stock option, compensation or benefit plans, programs or other arrangements, and shall include benefits payable under this Agreement.
Limitation on Change of Control Payments. This Section 5 applies only in the event the Company determines that this Agreement is subject to the limitations of Section 280G of the Code, or any successor provision, and the regulations issued thereunder. In the event any Change of Control Benefit, as defined below, payable to Executive would constitute an “excess parachute payment” as defined in Code Section 280G, Executive shall receive a “tax gross-up” payment sufficient to pay the initial excise tax applicable to such excess parachute payment (but excluding the income and excise taxes, if any, applicable to the tax gross-up payment). Such additional cash payment shall be made within sixty (60) days following the effective date of the Change of Control. For purposes of this Section 5, a “Change of Control Benefit” shall mean any payment, benefit or transfer of property in the nature of compensation paid to or for the benefit of Executive under any arrangement which is considered contingent on a Change of Control for purposes of Code Section 280G, including, without limitation, any and all of the Company’s salary, bonus, incentive, restricted stock, stock option, equity-based compensation or benefit plans, programs or other arrangements, and shall include benefits payable under this Agreement.
Limitation on Change of Control Payments. Anything in this Agreement to the contrary notwithstanding, if the Committee determines upon a Change of Control that the Net Aggregate Change of Control Payments exceeds 10% of the Company’s Market Capitalization, each of the Change of Control Payments payable to the Executive shall be reduced by the percentage obtained by dividing (i) the Excess Change of Control Payments by (ii) the Gross Aggregate Change of Control Payments. If the Change of Control payments are reduced pursuant to the preceding sentence and if after such reduction any amounts that were previously not tax deductible by the Company become tax deductible such that the Net Aggregate Change of Control Payments (after taking into account the reductions in the Change of Control Payments determined in the preceding sentence) is less than 10% of the Company’s Market Capitalization, the percentage determined in the preceding sentence will be successively recomputed to proportionately increase the amount of each Change of Control Payment until the Net Aggregate Change of Control Payments (after taking into account any adjustments to the Change of Control Payments required by this sentence) equals 10% of the Company’s Market Capitalization. Any provision in this Section 6.8 to the contrary notwithstanding, if the foregoing provisions of this Section 6.8 would otherwise cause the amount of the Severance Payment payable to the Executive pursuant to Section 7.3(b) and 7.4 to be reduced to an amount that is less than the sum of the Executive’s Base Salary and Target Annual Bonus, the amount of the Severance Payment, if any, payable to the Executive pursuant to Section 7.3(b) and 7.4 shall equal an amount that is not less than the sum of the Executive’s Base Salary and Target Annual Bonus and there will be no further adjustment to the amount of Change of Control Payments made to any other Affected Executive to reflect any such increase in the Executive’s Severance Payment. The following definitions shall apply for purposes of this Section 6.8:
