Common use of Code Limitations on Benefits Clause in Contracts

Code Limitations on Benefits. In the event that the aggregate of any amounts payable to or on behalf of Executive under this Agreement and under any other plan, agreement or policy of Company or any Affiliate of Company would otherwise result in the imposition of tax under Section 4999 of the Code due to an excess parachute payment, as determined by Company's independent auditors, then the amounts payable to or on behalf of Executive under this Agreement shall be reduced to the extent necessary (but not below zero) so that such aggregate amounts shall not be a parachute payment. For purposes of determining any limitation under this Section 3(D): (a) no portion of any benefit the receipt or enjoyment of which Executive shall have effectively waived in writing shall be taken into account, and (b) the value of any non-cash benefit or any deferred payment or benefit shall be determined by Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. If Company's independent auditors determine that payment that would be a parachute payment has been made to Executive hereunder, then the excess of (a) the amount of such payment actually made hereunder over (b) the amount that could be paid hereunder without any amount payable hereunder being a parachute payment, shall constitute a loan by Company to Executive, payable to Company upon demand with interest at the rate provided in Section 1274(d)(2)(B) of the Code commencing as of the date or dates of payment by Company of such excess amount.