Common use of Determination of Limit Clause in Contracts

Determination of Limit. Within forty (40) days following the Date of Termination or notice by one party to the other of its belief that there is a payment or benefit due Employee that will result in an excess parachute payment, Employee and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of a nationally recognized tax counsel (“National Tax Counsel”) selected by the Company (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income (as defined below), (ii) the amount and present value of the Total Payments, (iii) the amount and present value of any excess parachute payments determined without regard to any reduction of Total Payments pursuant to Section 8.1. The opinion of National Tax Counsel shall be addressed to the Company and Employee and shall be binding upon the Company and Employee. If such National Tax Counsel opinion determines that the Total Payments should be reduced pursuant to Section 8.1, then the payments under Section 5.4 or any other payment or benefit determined by such counsel to be includable in Total Payments shall be reduced or eliminated so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. In such event, payments or benefits included in the Total Payments shall be reduced or eliminated by applying the following principles: (1) the portion of the Total Payments that does not constitute deferred compensation under section 409A of the Code shall first be reduced (if necessary, to zero), and then (2) all other Total Payments shall thereafter be reduced (if necessary, to zero) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first).

Determination of Limit. Within forty (40) days following the Date of Termination or notice by one party to the other of its belief that there is a payment or benefit due Employee that will result in an excess parachute payment, Employee and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of a nationally recognized tax counsel (“National Tax Counsel”) selected by the Company (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income (as defined below), (ii) the amount and present value of the Total Payments, (iii) the amount and present value of any excess parachute payments determined without regard to any reduction of Total Payments pursuant to Section 8.15(a). The opinion of National Tax Counsel shall be addressed to the Company and Employee and shall be binding upon the Company and Employee. If such National Tax Counsel opinion determines that the Total Payments should be reduced pursuant to Section 8.15(a), then the payments under Section 5.4 2(d) or any other payment or benefit determined by such counsel to be includable in Total Payments shall be reduced or eliminated so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. In such event, payments or benefits included in the Total Payments shall be reduced or eliminated by applying the following principles: (1) the portion of the Total Payments that does not constitute deferred compensation under section 409A of the Code shall first be reduced (if necessary, to zero), and then (2) all other Total Payments shall thereafter be reduced (if necessary, to zero) with, in each case, cash payments being reduced before non-cash payments (and, within each category, payments to be paid last being reduced first).