Excise Tax Limitation. (a) Notwithstanding anything contained in this Agreement to the contrary, to the extent that the payments and benefits provided under this Agreement and benefits provided to, or for the benefit of, Executive under any other Employer plan or agreement (such payments or benefits are collectively referred to as the “Payments”) would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payment to be made or benefit to be provided to Executive shall be subject to the Excise Tax (such reduced amount is hereinafter referred to as the “Limited Payment Amount”). Unless Executive shall have given prior written notice specifying a different order to Employer to effectuate the foregoing, Employer shall reduce or eliminate the Payments, by first reducing or eliminating the portion of the Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as hereinafter defined). Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing Executive’s rights and entitlements to any benefits or compensation.
(b) The determination of whether the Payments shall be reduced to the Limited Payment Amount pursuant to this Agreement and the amount of such Limited Payment Amount shall be made, at Employer’s expense, by a reputable accounting firm selected by Executive and reasonably acceptable to Employer (the “Accounting Firm”). The Accounting Firm shall provide its determination (the “Determination”), together with detailed supporting calculations and documentation to Employer and Executive within ten (10) days of the date of termination, if applicable, or such other time as specified by mutual agreement of Employer and Executive, and if the Accounting Firm determines that no Excise Tax is payable by Executive with respect to the Payments, it shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to any such Payments. The Determination shall be binding, final and conclusive upon Employer and Executive.
Excise Tax Limitation. Notwithstanding any provision of this Agreement to the contrary, if any benefit payment hereunder would be treated as an “excess parachute payment” under Code Section 280G, the Employer shall reduce such benefit payment to the extent necessary to avoid treating such benefit payment as an excess parachute payment. The Executive shall be entitled to only the reduced benefit and shall forfeit any amount over and above the reduced amount.
Excise Tax Limitation. In the event that any payment or benefit (within the meaning of Code §280G(b)(2) of the Code) to the Participant or for the Participant’s benefit paid or payable or distributed or distributable (including, but not limited to, the acceleration of the time for the vesting or payment of such benefit or payment) pursuant to the terms of this Plan or otherwise in connection with, or arising out of, the Participant’s employment with the Plan Sponsor or any of its Affiliates or a Change in Control within the meaning of Code §280G of the Code (a “Payment” or “Payments”), would be subject to the excise tax imposed by Code §4999 of the Code (the “Excise Tax”), then the Payments shall be increased in an amount necessary to provide for the payment of the excise tax imposed by Code § 4999 (the “Section 4999 Limit”). Any payment made to the Participant under this Section 3.13 shall be made no later than the end of the calendar year following the calendar year in which the Participant remits the related taxes.
Excise Tax Limitation. (a) Notwithstanding anything in this Agreement to the contrary, if any portion of any payments to Executive by the Company under this Agreement and any other present or future plan of the Company or other present or future agreement between Executive and the Company would not be deductible by the Company (collectively, "Payments") for federal income tax purposes by reason of application of Section 162(m) of the Internal Revenue Code (the "Code"), then payment of that portion to Executive shall be deferred until the earliest date upon which payment thereof can be made to Executive without being non-deductible pursuant to Section 162(m) of the Code. In the event of such deferral, the Company shall pay interest to Executive on the deferred amount at 120% of the applicable federal rate provided for in Section 1274(d)(1) of the Code. In addition, notwithstanding any provision of this Agreement to the contrary, the aggregate present value of the payments and benefits (excluding those payments and benefits not treated as parachute payments under Code Section 280G(b)) to be made or provided to the Executive by the Company (whether pursuant to this Agreement or otherwise) shall not exceed three times the Executive's annualized includible compensation for the base period, as defined in Code Section 280G(d) of the Code, minus one dollar ($1.00) (the "Limited Payment Amount"), and any excess payments or benefits shall be forfeited; provided, however, that the forfeiture provision of this sentence shall apply only if such forfeiture provision results in larger aggregate after-tax payments and benefits to the Executive than if the forfeiture provision
Excise Tax Limitation. (a) It is the intention of the Parties that no portion of any payment under this Agreement, or payments to or for the benefit of the Executive under any other agreement or plan, be deemed to be an Excess Parachute Payment. The present value of payments to or for the benefit of the Executive in the nature of compensation, receipt of which is contingent on a Change of Control, and to which Code Section 280G applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one dollar ($1.00) less than the maximum amount that the Company may pay without loss of deduction under Code Section 280G(a). Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4). Within one hundred twenty (120) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive that will result in an Excess Parachute Payment, the Parties, at the Company’s expense, shall obtain the opinion of an Independent Advisor, which opinion need not be unqualified, which sets forth (A) the Executive’s applicable “base amount” (as defined under Code Section 280G), (B) the present value of Total Payments and (C) the amount and present value of any Excess Parachute Payments. In the event that such opinion determines that there would be an Excess Parachute Payment, the payment hereunder or any other payment determined by such Independent Advisor to be includable in Total Payments shall be modified, reduced or eliminated, in accordance with Code Section 409A, as specified by the Executive in writing delivered to the Company within ninety (90) days of the Executive’s receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no Excess Parachute Payment. The provisions of this Section 5, including the calculations, notices and opinion provided for herein, shall be based upon the conclusive presumption that (A) the compensation and benefits provided for under this Agreement and (B) any other compensation earned by the Executive pursuant to the Company’s compensation programs that would have been paid in any event, are reasonable compensation for services rendered, even though the timing of such payment may be triggered by a Change of Control.
(b) The Parties hereby...
Excise Tax Limitation. Notwithstanding anything to the contrary in this Agreement, if the Company determines in good faith that any portion of the Retention Bonus or Severance Payment to which the Executive is entitled would be subject to the excise tax imposed by Section 4999 of the Code, then the Retention Bonus or Severance Payment, as the case may be, shall be reduced by the Company to the minimum extent necessary to avoid any such excise tax. All determinations required to be made pursuant to the preceding sentence shall be made by the Board of Directors of the Company, which shall provide supporting calculations and documentation to the Executive promptly following his request therefor.
Excise Tax Limitation. Notwithstanding Section
2.1 of this Agreement, in the event that any Payment (as hereinafter defined) would be subject in whole or in part to the excise tax (the "Excise Tax") under Section 4999 of the Internal Revenue Code (the "Code"), then the severance payments payable under Section 2.1 of this Agreement shall be reduced to the extent, but only to the extent, necessary so that no portion of any Payment is subject to the Excise Tax (the "Severance Reduction"). However, no Severance Reduction shall be made unless the net amount of the Total Payments (as hereinafter defined) after such Severance Reduction and after deduction of the net amount of federal, state and local income taxes on such reduced Total Payments would be greater than the net amount of the Total Payments without the Severance Reduction but after deduction of the Excise Tax and the net amount of federal, state and local income taxes on such unreduced Total Payments. The determination as to whether a Severance Reduction is to be made and, if so, the amount of any such reduction shall be made by the firm of certified public accountants that had been acting as the Company's auditors prior to the Change in Control or by such other firm of certified public accountants, benefits consulting firm or legal counsel as the Board may designate for such purpose, with the approval of the Executive, prior to the Change in Control. The Company shall provide the Executive with the auditor's calculations of the amounts referred to in this Section 2.6 and such supporting materials as are reasonably necessary for the Executive to evaluate the Company's calculation.
Excise Tax Limitation. (a) Notwithstanding anything contained in this Agreement to the contrary, to the extent that any payment or distribution of any type to or for the benefit of the Executive by the Company, any affiliate of the Company, any person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended the Code, and the regulations thereunder), or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments") is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) if and to the extent that a reduction in the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such Total Payments. The Company shall reduce or eliminate the Total Payments, by reducing or eliminating the portion of the Total Payments payable to the Executive under Section 7.5.
Excise Tax Limitation. Notwithstanding any provision of this Agreement to the contrary, any payment due under this Agreement shall be reduced in a manner and to the extent so that no payments made under this Agreement, when aggregated with any other payments to be made to the Participant, shall be an “excess parachute payment” in accordance with Section 280G of the Code and be subject to the excise tax provided for under Section 4999 of the Code.”
Excise Tax Limitation. In the event that any amounts payable to the Executive under this Agreement or otherwise would (a) constitute “parachute payments” within the meaning of Code Section 280G, and (b) but for this Section 3, be subject to the excise tax imposed by Code Section 4999, then such payments shall be reduced in a manner determined by the Company (by the minimum possible amounts) that is consistent with the requirements of Section 409A until no amount payable to the Executive will be subject to the excise tax under Code Section 4999.
