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. (b) In the event that the amount of any Severance Payments, including any benefits, which would be payable to or for the benefit of Executive under this Agreement must be modified or reduced to comply with this Section 6, Executive shall direct which Severance Payments are to be modified or reduced, including allocating a portion of such Severance Payments as compensation for ongoing obligations by Executive pursuant to Section 11; provided, however, that no increase in the amount of any payment or change in the timing of the payment shall be made without the consent of the Companies. (c) This Section 6 shall be interpreted so as to maximize the net after-tax dollar value to Executive. In determining whether any Excess Severance Payments exist and the most advantageous outcome for Executive, the parties shall take into account all provisions of Internal Revenue Code Section 280G, and the Regulations thereunder, including making appropriate adjustments to such calculations for amounts established to be "Reasonable Compensation" as provided in Section 280G(b)(4) of the Code. The Company, Association, and Executive shall cooperate fully with Tax Counsel and provide Tax Counsel with all compensation and benefit amounts, personal tax information, and other information necessary or helpful in calculation of such net after-tax amounts. In the event of any Internal Revenue Service examination, audit, or other inquiry, the Companies and Executive agree to take action to provide, and to cooperate in providing, evidence to the Internal Revenue Service (and, if applicable, the state revenue department) to achieve this goal. (d) If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding, or pursuant to an opinion of Tax Counsel, that notwithstanding the good faith of the Companies and Executive in applying the terms of this Section 6, either (i) the amounts paid to Executive unintentionally constituted Excess Severance Payments and triggered the Excise Tax, even though the payments to Executive were reduced in an effort to avoid such result; or (ii) the amounts paid to Executive were reduced by more than was necessary to avoid triggering the Excise Tax, then the parties shall make the applicable correction that will achieve the goal described in Section 6(c) hereof. In the event the error referred to in clause (i) hereof occurs, Executive is hereby required to repay to the Companies, within 15 days after the error is discovered, the amount necessary to avoid the Excise Tax; provided, however, that if Executive, based on advice from Tax Counsel and Executive's own tax advisor, determines that the return of such amounts will not serve to eliminate the Excess Severance Payments and the Excise Tax, the Companies then shall be obligated to pay to Executive, within 15 days after Executive notifies the Companies of Executive's determination, the total amount by which the original amount of Executive's compensation and benefits were reduced pursuant to the terms of Section 6(a) and (b) hereof. In the event the error referred to in clause (ii) hereof occurs, the Companies are hereby required to repay to Executive, within 30 days after the error is discovered, the maximum amount of the compensation and benefits that were reduced pursuant to the terms of Sections 6(a) and (b) hereof that Executive may receive without triggering the Excise Tax.

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 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. (b) In the event that the amount of any Severance Payments, including any benefits, which would be payable to or for the benefit of Executive under this Agreement must be modified or reduced to comply with this Section 6, Executive shall direct which Severance Payments are to be modified or reduced, including allocating a portion of such Severance Payments as compensation for ongoing obligations by Executive pursuant to Section 11; provided, however, that no increase in the amount of any payment or change in the timing of the payment shall be made without the consent of the Companies. (c) This Section 6 shall be interpreted so as to maximize the net after-tax dollar value to Executive. In determining whether any Excess Severance Payments exist and the most advantageous outcome for Executive, the parties shall take into account all provisions of Internal Revenue Code Section 280G, and the Regulations thereunder, including making appropriate adjustments to such calculations for amounts established to be "Reasonable Compensation" as provided in Section 280G(b)(4) of the Code. The Company, Association, and Executive shall cooperate fully with Tax Counsel and provide Tax Counsel with all compensation and benefit amounts, personal tax information, information and other information necessary or helpful in calculation of such net after-tax amounts. In the event of any Internal Revenue Service examination, audit, or other inquiry, the Companies and Executive agree to take action to provide, and to cooperate in providing, evidence to the Internal Revenue Service (and, if applicable, the state revenue department) to achieve this goal. (d) If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding, or pursuant to an opinion of Tax Counsel, that notwithstanding the good faith of the Companies and Executive in applying the terms of this Section 6, either (i) the amounts paid to Executive unintentionally constituted Excess Severance Payments and triggered the Excise Tax, even though the payments to Executive were reduced in an effort to avoid such result; or (ii) the amounts paid to Executive were reduced by more than was necessary to avoid triggering the Excise Tax, then the parties shall make the applicable correction that will achieve the goal described in Section 6(c) hereof. In the event the error referred to in clause (i) hereof occurs, Executive is hereby required to repay to the Companies, within 15 days after the error is discovered, the amount necessary to avoid the Excise Tax; provided, however, that if Executive, based on advice from Tax Counsel and Executive's own tax advisor, determines that the return of such amounts will not serve to eliminate the Excess Severance Payments and the Excise Tax, the Companies then shall be obligated to pay to Executive, within 15 days after Executive notifies the Companies of Executive's determination, the total amount by which the original amount of Executive's compensation and benefits were reduced pursuant to the terms of Section 6(a) and (b) hereof. In the event the error referred to in clause (ii) hereof occurs, the Companies are hereby required to repay to Executive, within 30 days after the error is discovered, the maximum amount of the compensation and benefits that were reduced pursuant to the terms of Sections 6(a) and (b) hereof that Executive may receive without triggering the Excise Tax.

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. (b) In the event that the amount of any Severance Payments, including any benefits, which would be payable to or for the benefit of Executive under this Agreement must be modified or reduced to comply with this Section 6, Executive shall direct which Severance Payments are to be modified or reduced, including allocating a portion of such Severance Payments as compensation for ongoing obligations by Executive pursuant to Section 11; provided, however, that no increase in the amount of any payment or change in the timing of the payment shall be made without the consent of the Companies. (c) This Section 6 shall be interpreted so as to maximize the net after-tax dollar value to Executive. In determining whether any Excess Severance Payments exist and the most advantageous outcome for Executive, the parties shall take into account all provisions of Internal Revenue Code Section 280G, and the Regulations thereunder, including making appropriate adjustments to such calculations for amounts established to be "Reasonable Compensation" as provided in Section 280G(b)(4) of the Code. The Both the Company, Association, and Executive shall cooperate fully with Tax Counsel and provide Tax Counsel with all compensation and benefit amounts, personal tax information, information and other information necessary or helpful in calculation of such net after-tax amounts. In the event of any Internal Revenue Service examination, audit, or other inquiry, the Companies and Executive agree to take action to provide, and to cooperate in providing, evidence to the Internal Revenue Service (and, if applicable, the state revenue department) to achieve this goal. (d) If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding, or pursuant to an opinion of Tax Counsel, that notwithstanding the good faith of the Companies and Executive in applying the terms of this Section 6, either (i) the amounts paid to Executive unintentionally constituted Excess Severance Payments and triggered the Excise Tax, even though thought the payments to Executive were reduced in an effort to avoid such result; or (ii) the amounts paid to Executive were reduced by more than was necessary to avoid triggering the Excise Tax, then the parties shall make the applicable correction that will achieve the goal described in Section 6(c) hereof. In the event the error referred to in clause (i) hereof occurs, Executive is hereby required to repay to the Companies, within 15 days after the error is discovered, the amount necessary to avoid the Excise Tax; provided, however, that if Executive, based on advice from Tax Counsel and Executive's own tax advisor, determines that the return of such amounts will not serve to eliminate the Excess Severance Payments and the Excise Tax, the Companies then shall be obligated to pay to Executive, within 15 days after Executive notifies the Companies of Executive's determination, the total amount by which the original amount of Executive's compensation and benefits were reduced pursuant to the terms of Section 6(a) and (b) hereof. In the event the error referred to in clause (ii) hereof occurs, the Companies are hereby required to repay to Executive, within 30 days after the error is discovered, the maximum amount of the compensation and benefits that were reduced pursuant to the terms of Sections 6(a) and (b) hereof that Executive may receive without triggering the Excise Tax.

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 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. (b) In the event that the amount of any Severance Payments, including any benefits, which would be payable to or for the benefit of Executive under this Agreement must be modified or reduced to comply with this Section 6, Executive shall direct which Severance Payments are to be modified or reduced, including allocating a portion of such Severance Payments as compensation for ongoing obligations by Executive pursuant to Section 11; provided, however, that no increase in the amount of any payment or change in the timing of the payment shall be made without the consent of the Companies. (c) This Section 6 shall be interpreted so as to maximize the net after-tax dollar value to Executive. In determining whether any Excess Severance Payments exist and the most advantageous outcome for Executive, the parties shall take into account all provisions of Internal Revenue Code Section 280G, and the Regulations thereunder, including making appropriate adjustments to such calculations for amounts established to be "Reasonable Compensation" as provided in Section 280G(b)(4) of the Code. The Both the Company, Association, and Executive shall cooperate fully with Tax Counsel and provide Tax Counsel with all compensation and benefit amounts, personal tax information, information and other information necessary or helpful in calculation of such net after-tax amounts. In the event of any Internal Revenue Service examination, audit, or other inquiry, the Companies and Executive agree to take action to provide, and to cooperate in providing, evidence to the Internal Revenue Service (and, if applicable, the state revenue department) to achieve this goal. (d) If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding, or pursuant to an opinion of Tax Counsel, that notwithstanding the good faith of the Companies and Executive in applying the terms of this Section 6, either (i) the amounts paid to Executive unintentionally constituted Excess Severance Payments and triggered the Excise Tax, even though thought the payments to Executive were reduced in an effort to avoid such result; or (ii) the amounts paid to Executive were reduced by more than was necessary to avoid triggering the Excise Tax, then the parties shall make the applicable correction that will achieve the goal described in Section 6(c) hereof. In the event the error referred to in clause (i) hereof occurs, Executive is hereby required to repay to the Companies, within 15 days after the error is discovered, the amount necessary to avoid the Excise Tax; provided, however, that if Executive, based on advice from Tax Counsel and Executive's own tax advisor, determines that the return of such amounts will not serve to eliminate the Excess Severance Payments and the Excise Tax, the Companies then shall be obligated to pay to Executive, within 15 days after Executive notifies the Companies of Executive's determination, the total amount by which the original amount of Executive's compensation and benefits were reduced pursuant to the terms of Section 6(a) and (b) hereof. In the event the error referred to in clause (ii) hereof occurs, the Companies are hereby required to repay to Executive, within 30 days after the error is discovered, the maximum amount of the compensation and benefits that were reduced pursuant to the terms of Sections 6(a) and (b) hereof that Executive may receive without triggering the Excise Tax.