Common use of Excise Tax Payment Limitation Clause in Contracts

Excise Tax Payment Limitation. Notwithstanding anything in this Agreement or any written or unwritten policy of the Company to the contrary, (i) if it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any other agreement between the Company and the Executive or otherwise (a "Payment"), would be subject to the excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended, (the "Code") or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), or (ii) if the Executive shall otherwise become obligated to pay the Excise Tax in respect of a Payment, then an analysis shall be conducted to determine if the amount payable pursuant to this Agreement, in combination with any other payments, when taking into consideration the payment of the Excise Tax, exceeds the amount that would otherwise be payable if the Excise Tax was not applicable. If after the analysis the net amount received by the Executive after deducting the Excise Tax is greater than the maximum amount payable that would avoid the imposition of the Excise Tax, then the Company shall pay to the Executive the amount called for in this Agreement. However, if the net amount received by the Executive after paying the Excise Tax would be less than the amount if the payment did not exceed an amount that would subject it to the Excise Tax, the lower amount shall be paid. The intent of this provision is to insure that the Executive, regardless of the Excise Tax, receives the largest net payment possible. The parties acknowledge that the Executive is solely responsible for the payment of any Excise Tax that is assessed based upon a payment made pursuant to this Agreement or any other payment made by the Company pursuant to any other plan or obligation.

Excise Tax Payment Limitation. Notwithstanding anything in this Agreement or any written or unwritten policy of the Company to the contrary, (i) if it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any other agreement between the Company and the Executive or otherwise (a "“Payment"” or “Payments”), would constitute a parachute payment (“Parachute Payment”) within the meaning of Section 280G of the Code and would, but for this Section 5, be subject to the excise tax imposed by section under Section 4999 of the Internal Revenue Code of 1986, as amended, (the "Code"or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such excise tax taxes (such excise taxcollectively, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), or then prior to making the Payments, a calculation shall be made comparing (iii) if the Net Benefit (as defined below) to the Executive shall otherwise become obligated to pay of the Excise Tax in respect of a Payment, then an analysis shall be conducted to determine if the amount payable pursuant to this Agreement, in combination with any other payments, when taking into consideration the Payments after payment of the Excise Tax, exceeds Tax to (ii) the amount that would otherwise be payable Net Benefit to the Executive if the Excise Tax was not applicable. If after Payments are limited to the analysis the net amount received by the Executive after deducting the Excise Tax is greater than the maximum amount payable that would extent necessary to avoid the imposition of being subject to the Excise Tax, then the Company shall pay to the Executive . Only if the amount called for in this Agreement. However, if the net amount received by the Executive after paying the Excise Tax would be calculated under (i) above is less than the amount if under (ii) above will the payment did not exceed an amount Payments be reduced to the minimum extent necessary to ensure that would no portion of the Payments is subject it to the Excise Tax. “Net Benefit” shall mean the present value of the Payments net of all federal, state, local, foreign income, employment and excise taxes. The Payments shall be reduced in a manner that maximizes the Executive’s economic position. In applying this principle, the lower amount reduction shall be paidmade in a manner consistent with the requirements of Section 409A of the Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. Any determination required under this Section 5, including whether any payments or benefits are parachute payments, shall be made by the Company in its sole discretion. The intent of Executive shall provide the Company with such information and documents as the Company may reasonably request in order to make a determination under this provision is to insure that Section 5. The Company’s determination shall be final and binding on the Executive, regardless of the Excise Tax, receives the largest net payment possible. The parties acknowledge that the Executive is solely responsible for the payment of any Excise Tax that is assessed based upon a payment made pursuant to this Agreement or any other payment made by the Company pursuant to any other plan or obligation.