Common use of Other Tax Considerations Clause in Contracts

Other Tax Considerations. Notwithstanding any other provision of this Agreement to the contrary, in the event that any payment or benefit received or to be received by Employee is triggered by an event described in subparagraph (d) of Paragraph 9 of this Agreement, whether such payment or benefit is pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Employer or any Affiliate of Employer (hereinafter, all such payments and benefits being sometimes referred to as "Total Payments"), and would not be deductible, either in whole or in part, by Employer or an Affiliate making such payment or providing such benefit as a result of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any such other plan, arrangement or agreement), (A) the cash portion of the Total Payments provided in this Paragraph 20 shall first be reduced (if necessary, to zero (0)), and (B) all other non-cash Total Payments under this Paragraph 20 shall next be reduced (if necessary, to zero (0)); provided, however, that the Employee's payment shall only be reduced by this Paragraph 20 if Employer determines that reducing the Total Payments would result in greater after-tax proceeds to the Employee than if no such reduction in Total Payments had occurred. Any determination required by the preceding sentence shall be made by independent certified public accountants or tax counsel (hereinafter, such party shall sometimes be hereinafter referred to as the "Independent Adviser") selected by Employer, the selection of which shall be reasonably acceptable to Employee. In making Employer's determination as to the application and effect of this Paragraph 20 on any payments or benefits received or to be received by Employee, (i) no portion of the Total Payments shall be taken into account which in the opinion of the Independent Adviser does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, including by reason of Section 280G(b)(4)(A) of the Code; (ii) those Total Payments provided under this Paragraph 20 shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clause (i)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the Independent Adviser; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent certified public accountants in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Other Tax Considerations. Notwithstanding any other provision of this Agreement to the contrary, in the event that any payment or benefit received or to be received by Employee is triggered by an event described in subparagraph (d) of Paragraph 9 of this Agreement, whether such payment or benefit is pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Employer or any Affiliate of Employer (hereinafter, all such payments and benefits being sometimes referred to as "Total Payments"), and would not be deductible, either in whole or in part, by Employer or an Affiliate making such payment or providing such benefit as a result of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any such other plan, arrangement or agreement), (A) the cash portion of the Total Payments provided in this Paragraph 20 19 shall first be reduced (if necessary, to zero (0)), and (B) all other non-cash Total Payments under this Paragraph 20 19 shall next be reduced (if necessary, to zero (0)); provided, however, that the Employee's payment shall only be reduced by this Paragraph 20 19 if Employer determines that reducing the Total Payments would result in greater after-tax proceeds to the Employee than if no such reduction in Total Payments had occurred. Any determination required by the preceding sentence shall be made by independent certified public accountants or tax counsel (hereinafter, such party shall sometimes be hereinafter referred to as the "Independent Adviser") selected by Employer, the selection of which shall be reasonably acceptable to Employee. In making Employer's determination as to the application and effect of this Paragraph 20 19 on any payments or benefits received or to be received by Employee, (i) no portion of the Total Payments shall be taken into account which in the opinion of the Independent Adviser does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, including by reason of Section 280G(b)(4)(A) of the Code; (ii) those Total Payments provided under this Paragraph 20 19 shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clause (i)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the Independent Adviser; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent certified public accountants in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Other Tax Considerations. Notwithstanding any other provision of this Agreement or any other plan, agreement or arrangement applicable to Employee to the contrary, in the event that (1) any payment or benefit portion of the aggregate payments and benefits received or to be received by Employee is triggered by an event described in subparagraph (d) of Paragraph 9 of this Agreement, whether such payment or benefit is pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Employer or any Affiliate of Employer (hereinafter, all such payments and benefits being sometimes referred to as "Total Payments"), and would not be deductible, either in whole which are contingent on a change of ownership or in part, by effective control of Employer or an Affiliate making such payment or providing such benefit as a result change in the ownership of a substantial portion of the assets of Employer or an Affiliate (in each case, within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code")) (hereinafter, all such payments and benefits being sometimes referred to as "Total Payments") would constitute a "parachute payment", as defined in Code Section 280G(b)(2), and (2) the amount of such parachute payment that Employee would receive after deduction of all excise taxes payable by the Employee under Section 4999 of the Code with respect to any portion of such Total Payments constituting an "excess parachute payment" (within the meaning of Section 280(G) of the Code) would be less than 299 percent of Employee's "base amount" (as defined in Code Section 39 15 280G(b)(3), then, but only then, Employee's right to the portion of such Total Payments otherwise constituting a "parachute payment" shall automatically be reduced so that the aggregate of the applicable values thereof for purposes of Code Section 280(G) shall be equal to 299 percent of the Employee's "base amount" by reducing] to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any such other plan, arrangement or agreement), (A) first the cash portion of the Total Payments provided in this Paragraph 20 shall first be reduced otherwise constituting a "parachute payment" (if necessary, to zero (0)), and (B) then] all other non-cash Total Payments under this Paragraph 20 shall next be reduced otherwise constituting a "parachute payment" (if necessary, to zero (0)); providedprovided that, however, that the Employee's payment shall only be reduced by this Paragraph 20 if Employer determines that reducing the Total Payments would result in greater after-tax proceeds to the Employee than if no making any such reduction in Total Payments had occurred. Any determination required by the preceding sentence shall be made by independent certified public accountants or tax counsel (hereinafter, such party shall sometimes be hereinafter referred to as the "Independent Adviser") selected by Employer, the selection of which shall be reasonably acceptable to Employee. In making Employer's determination as to the application and effect of this Paragraph 20 21 on any payments or benefits received or to be received by Employee, (i) no portion of the Total Payments shall be taken into account which in the opinion of the Independent Adviser does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, including by reason of Section 280G(b)(4)(A) of the Code; and (ii) those Total Payments provided under this Paragraph 20 shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clause (i)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the Independent Adviser; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments otherwise constituting a "parachute payment" shall be determined by the Company's independent certified public accountants in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Other Tax Considerations. Notwithstanding any other provision of this Amended and Restated Employment Agreement to the contrary, in the event that any payment or benefit received or to be received by Employee is triggered by an event described in subparagraph (d) of Paragraph 9 of this Amended and Restated Employment Agreement, whether such payment or benefit is pursuant to the terms of this Amended and Restated Employment Agreement or any other plan, arrangement or agreement with Employer or any Affiliate of Employer (hereinafter, all such payments and benefits being sometimes referred to as "“Total Payments"”), and would not be deductible, either in whole or in part, by Employer or an Affiliate making such payment or providing such benefit as a result of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any such other plan, arrangement or agreement), (A) the cash portion of the Total Payments provided in this Paragraph 20 shall first be reduced (if necessary, to zero (0)), and (B) all other non-cash Total Payments under this Paragraph 20 shall next be reduced (if necessary, to zero (0)); provided, however, that the Employee's ’s payment shall only be reduced by this Paragraph 20 if Employer determines that reducing the Total Payments would result in greater after-tax proceeds to the Employee than if no such reduction in Total Payments had occurred. Any determination required by the preceding sentence shall be made by independent certified public accountants or tax counsel (hereinafter, such party shall sometimes be hereinafter referred to as the "“Independent Adviser"”) selected by Employer, the selection of which shall be reasonably acceptable to Employee. In making Employer's ’s determination as to the application and effect of this Paragraph 20 on any payments or benefits received or to be received by Employee, (i) no portion of the Total Payments shall be taken into account which in the opinion of the Independent Adviser does not constitute a "“parachute payment" ” within the meaning of Section 280G(b)(2) of the Code, including by reason of Section 280G(b)(4)(A) of the Code; (ii) those Total Payments provided under this Paragraph 20 shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clause (i)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the Independent Adviser; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's ’s independent certified public accountants in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.