Common use of EXCESS PARACHUTE PAYMENT REDUCTION Clause in Contracts

EXCESS PARACHUTE PAYMENT REDUCTION. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a "Payment") would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder, then the aggregate present value of amounts payable or distributable to or for the benefit of Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder. For purposes of this Section 23, present value shall be determined in accordance with Section 280G(d)(4) of the Internal Revenue Code and applicable regulations promulgated thereunder. All determinations required to be made under this Section 23 shall be made by the independent certified public accounting firm performing the year-end audit on the Company (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and Executive within thirty (30) days after the termination date

EXCESS PARACHUTE PAYMENT REDUCTION. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a "Payment") would be nondeductible by the Company for Federal income tax purposes because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder, then the aggregate present value of amounts payable or distributable to or for the benefit of Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder. For purposes of this Section 2314, present value shall be determined in accordance with Section 280G(d)(4) of the Internal Revenue Code and applicable regulations promulgated thereunder. All determinations required to be made under this Section 23 14 shall be made by the independent certified public accounting firm performing the year-end audit on the Company (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and Executive within thirty (30) days after the termination datedate or such earlier time as is requested by the Company. The Company and Executive shall cooperate with each other and the Accounting Firm and will provide necessary information so that the Accounting Firm may make all such determinations. All such determinations by the Accounting Firm shall be final and binding upon the Company and Executive. Executive shall determine which of the Agreement Payments (or, at the election of Executive, other payments) shall be eliminated or reduced consistent with the requirements of this Section 14, provided that, if Executive does not make such determination within twenty (20) days of the receipt of the calculations made by the Accounting Firm, the Company shall elect which of the Agreement Payments shall be eliminated or reduced consistent with the requirements of this Section 14 and shall notify Executive promptly of such election. As a result of the uncertainty in the application of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder at the time of the initial determination by the Accounting Firm hereunder, it is possible that Agreement Payments will be made by the Company which should not have been made ("Overpayment") or that additional Agreement Payments will not be made by the Company which could have been made ("Underpayment"), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm or a court of competent jurisdiction (in a final judgment as to which the time for appeal has lapsed or no appeal is available) determines at any time that an Overpayment has been made, any such Overpayment shall be treated for all purposes as a loan to Executive which Executive shall repay to the Company together with interest at the applicable short-term Federal rate provided for in Section 1274(d)(1) of the Internal Revenue Code, compounded semi-annually; provided, however, that no amount shall be payable by Executive to the Company (or if paid by Executive to the Company, such payment shall be returned to Executive) if and to the extent such payment would not reduce the amount which is subject to taxation under Section 4999 of the Internal Revenue Code. In the event that the Accounting Firm or a court of competent jurisdiction (in a final judgment as to which the time for appeal has lapsed or no appeal is available) determines at any time that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable short-term Federal rate provided for in Section 1274(d)(1) of the Internal Revenue Code, compounded semi-annually.

EXCESS PARACHUTE PAYMENT REDUCTION. (a) Anything in this Agreement to the contrary notwithstanding, in the event if it shall be is determined that any payment or distribution by the Company Trust to or for the benefit of Executive Kuhn (whether paid or payable or distributed or distributable pursuant to pursuanx xx the terms of this Agreement or otherwise) (a "Payment") would be nondeductible by the Company Trust for Federal income tax purposes because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder, then the aggregate present value of amounts payable or distributable to or for the benefit of Executive Kuhn pursuant to this Agreement (such payments or distributions pursuant pursuxxx to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company Trust because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder. For purposes of this Section 2312, present value shall be determined in accordance with Section 280G(d)(4) of the Internal Revenue Code and applicable regulations promulgated thereunder. All determinations required to be made under this Section 23 12 shall be made by the independent certified public accounting firm performing the year-end audit on the Company Accounting Firm (the "Accounting Firm"as defined in Section 12(b)) which shall provide detailed supporting calculations both to the Company Trust and Executive Kuhn within thirty (30) 30 days after the termination dateTermination Date or such earlier time ax xx requested by the Trust. The Trust and Kuhn shall cooperate with each other and the Accounting Firm and will xxxvide necessary information so that the Accounting Firm may make all such determinations. All such determinations by the Accounting Firm shall be final and binding upon the Trust and Kuhn. Kuhn shall determine which of the Agreement Payments (or, at thx xxecxxxx of Kuhn, other payments) shall be eliminated or reduced consistent with xxx requirements of this Section 12, provided that, if Kuhn does not make such xxxxrmination within 20 days of the receipt of the calculations made by the Accounting Firm, the Trust shall elect which of the Agreement Payments shall be eliminated or reduced consistent with the requirements of this Section 12, and shall notify Kuhn promptly of such election. All costs and expenses relating to thx xxterminations to be made hereunder shall be borne solely by the Trust.

EXCESS PARACHUTE PAYMENT REDUCTION. (a) Anything in this Agreement to the contrary notwithstanding, in the event if it shall be is determined that any payment or distribution by the Company Trust to or for the benefit of Executive Edelman (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a "“Payment"”) would be nondeductible by the Company Trust for Federal income tax purposes because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder, then the aggregate present value of amounts payable or distributable to or for the benefit of Executive Edelman pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "“Agreement Payments"”) shall be reduced (but not below zero) to the Reduced Amount. The "“Reduced Amount" ” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company Trust because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder. For purposes of this Section 2312, present value shall be determined in accordance with Section 280G(d)(4) of the Internal Revenue Code and applicable regulations promulgated thereunder. All determinations required to be made under this Section 23 12 shall be made by the independent certified public accounting firm performing the year-end audit on the Company Accounting Firm (the "Accounting Firm"as defined in Section 12(b)) which shall provide detailed supporting calculations both to the Company Trust and Executive Edelman within thirty (30) 30 days after the termination dateTermination Date or such earlier time as is requested by the Trust. The Trust and Edelman shall cooperate with each other and the Accounting Firm and will provide necessary information so that the Accounting Firm may make all such determinations. All such determinations by the Accounting Firm shall be final and binding upon the Trust and Edelman. Edelman shall determine which of the Agreement Payments (or, at the election of Edelman, other payments) shall be eliminated or reduced consistent with the requirements of this Section 12, provided that, if Edelman does not make such determination within 20 days of the receipt of the calculations made by the Accounting Firm, the Trust shall elect which of the Agreement Payments shall be eliminated or reduced consistent with the requirements of this Section 12, and shall notify Edelman promptly of such election. All costs and expenses relating to the determinations to be made hereunder shall be borne solely by the Trust.

EXCESS PARACHUTE PAYMENT REDUCTION. (a) Anything in this Agreement to the contrary notwithstanding, in the event if it shall be is determined that any payment or distribution by the Company Trust to or for the benefit of Executive Xxxxxxxxxx (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a "“Payment"”) would be nondeductible by the Company Trust for Federal income tax purposes because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder, then the aggregate present value of amounts payable or distributable to or for the benefit of Executive Xxxxxxxxxx pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "“Agreement Payments"”) shall be reduced (but not below zero) to the Reduced Amount. The "“Reduced Amount" ” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company Trust because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder. For purposes of this Section 2312, present value shall be determined in accordance with Section 280G(d)(4) of the Internal Revenue Code and applicable regulations promulgated thereunder. All determinations required to be made under this Section 23 12 shall be made by the independent certified public accounting firm performing the year-end audit on the Company Accounting Firm (the "Accounting Firm"as defined in Section 12(b)) which shall provide detailed supporting calculations both to the Company Trust and Executive Xxxxxxxxxx within thirty (30) 30 days after the termination dateTermination Date or such earlier time as is requested by the Trust. The Trust and Xxxxxxxxxx shall cooperate with each other and the Accounting Firm and will provide necessary information so that the Accounting Firm may make all such determinations. All such determinations by the Accounting Firm shall be final and binding upon the Trust and Xxxxxxxxxx. Xxxxxxxxxx shall determine which of the Agreement Payments (or, at the election of Xxxxxxxxxx, other payments) shall be eliminated or reduced consistent with the requirements of this Section 12, provided that, if Xxxxxxxxxx does not make such determination within 20 days of the receipt of the calculations made by the Accounting Firm, the Trust shall elect which of the Agreement Payments shall be eliminated or reduced consistent with the requirements of this Section 12, and shall notify Xxxxxxxxxx promptly of such election. All costs and expenses relating to the determinations to be made hereunder shall be borne solely by the Trust.

EXCESS PARACHUTE PAYMENT REDUCTION. (a) Anything in this Agreement to the contrary notwithstanding, in the event if it shall be is determined that any payment or distribution by the Company Trust to or for the benefit of Executive Dee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a "“Payment"”) would be nondeductible by the Company Trust for Federal income tax purposes because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder, then the aggregate present value of amounts payable or distributable to or for the benefit of Executive Dee pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "“Agreement Payments"”) shall be reduced (but not below zero) to the Reduced Amount. The "“Reduced Amount" ” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company Trust because of Section 280G of the Internal Revenue Code and applicable regulations promulgated thereunder. For purposes of this Section 2312, present value shall be determined in accordance with Section 280G(d)(4) of the Internal Revenue Code and applicable regulations promulgated thereunder. All determinations required to be made under this Section 23 12 shall be made by the independent certified public accounting firm performing the year-end audit on the Company Accounting Firm (the "Accounting Firm"as defined in Section 12(b)) which shall provide detailed supporting calculations both to the Company Trust and Executive Dee within thirty (30) 30 days after the termination dateTermination Date or such earlier time as is requested by the Trust. The Trust and Dee shall cooperate with each other and the Accounting Firm and will provide necessary information so that the Accounting Firm may make all such determinations. All such determinations by the Accounting Firm shall be final and binding upon the Trust and Dee. Dee shall determine which of the Agreement Payments (or, at the election of Dee, other payments) shall be eliminated or reduced consistent with the requirements of this Section 12, provided that, if Dee does not make such determination within 20 days of the receipt of the calculations made by the Accounting Firm, the Trust shall elect which of the Agreement Payments shall be eliminated or reduced consistent with the requirements of this Section 12, and shall notify Dee promptly of such election. All costs and expenses relating to the determinations to be made hereunder shall be borne solely by the Trust.