Common use of LIMITATION AND ADJUSTMENT OF BENEFITS Clause in Contracts

LIMITATION AND ADJUSTMENT OF BENEFITS. (a) Notwithstanding anything in this Agreement to the contrary, if, in the opinion of independent tax accountants or counsel selected and retained by the Companies and reasonably acceptable to the Executive ("Tax Counsel"), any of the compensation or benefits payable, or to be provided, to Executive by the Companies under this Agreement are treated as an excess parachute payment ("Excess Severance Payments") as defined in Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended ("Internal Revenue Code") (whether alone or in conjunction with payments or benefits by the Companies outside of this Agreement), the Companies shall direct Tax Counsel to determine and compare (i) Executive's net income after Executive's payment of all federal, state, and local taxes assuming that all of the compensation and benefits payable by the Companies under this Agreement and all such other arrangements are paid to Executive and Executive pays the "Excise Tax" (as imposed under Internal Revenue Code Section 4999); and (ii) Executive's net income after payment of all federal, state and local taxes assuming that the total amount of compensation and benefits payable by the Companies under this Agreement and all such other arrangements is reduced such that no Excess Severance Payments result and the Excise Tax is not triggered. If the amount calculated under (ii) above is less than 95% of the amount calculated under (i) above, then the full amount due from the Companies under all such arrangements shall be payable to Executive. If the amount calculated under (ii) above is at least 95% of the amount calculated under (i) above, then the total amount of compensation and benefits payable under all such arrangements shall be reduced, as provided in Section 6(b) below, such that Executive shall receive no Excess Severance Payments and shall have no personal liability for Excise Tax.