Common use of Parachute Excise Tax Clause in Contracts

Parachute Excise Tax. If any acceleration of the vesting of Executive's Options under this Agreement ("Acceleration") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then such Acceleration shall be reduced to the Reduced Amount. The "Reduced Amount" shall be whichever of the following which would provide the largest after-tax benefit to Executive: (i) the largest portion of the Acceleration that would result in no portion of the Acceleration being subject to the Excise Tax or (ii) the largest portion, up to and including the total, of the Acceleration, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, of the greater amount of the Acceleration notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. In the event that the Acceleration is to be reduced, such Acceleration shall be cancelled in the reverse order of the date of grant of the Executive's stock awards unless the Executive elects in writing a different order for cancellation. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Corporation and Executive within fifteen (15) calendar days after the date on which Executive's right to Acceleration arises (if requested at that time by the Company or Executive) or at such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect to an Acceleration, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Acceleration. Any good faith determination of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

Parachute Excise Tax. If any acceleration of the vesting of Executive's ’s Options under this Agreement ("“Acceleration"”) would (i) constitute a "“parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "“Excise Tax"”), then such Acceleration shall be reduced to the Reduced Amount. The "“Reduced Amount" ” shall be whichever of the following which would provide the largest after-tax benefit to Executive: (i) the largest portion of the Acceleration that would result in no portion of the Acceleration being subject to the Excise Tax or (ii) the largest portion, up to and including the total, of the Acceleration, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's ’s receipt, on an after-tax basis, of the greater amount of the Acceleration notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. In the event that the Acceleration is to be reduced, such Acceleration shall be cancelled in the reverse order of the date of grant of the Executive's ’s stock awards with the highest exercise price first, unless the Executive elects in writing a different order for cancellation. The An accounting firm engaged or other person mutually agreed upon by the Company for general audit purposes as of the day prior to the effective date of the Change of Control parties shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm or other person required to be made hereunder. The accounting firm or other person engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Corporation Company and Executive within fifteen (15) calendar days after the date on which Executive's ’s right to Acceleration arises (if requested at that time by the Company or Executive) or at such other time as requested by the Company or Executive. If the accounting firm or other person determines that no Excise Tax is payable with respect to an Acceleration, either before or after the application of the Reduced Amount, upon request by the Company or Executive, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Acceleration. Any good faith determination of the accounting firm or other person made hereunder shall be final, binding and conclusive upon the Company and Executive.

Parachute Excise Tax. If any acceleration the aggregate benefits set forth in Section 1 of the vesting of Executive's Options under this Agreement ("the “Acceleration"”) would (i) constitute a "“parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "“Excise Tax"”), then such Acceleration shall be reduced to the Reduced Amount. The "“Reduced Amount" ” shall be whichever of the following which would provide the largest after-tax benefit to Executive: (i) the largest portion of the Acceleration that would result in no portion of the Acceleration being subject to the Excise Tax or (ii) the largest portion, up to and including the total, of the Acceleration, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's ’s receipt, on an after-tax basis, of the greater amount of the Acceleration notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. In the event that the Acceleration is to be reduced, such Acceleration shall be cancelled in the reverse order of the date of grant of the Executive's stock awards following order: subsection 1(b)(ii), subsection 1(b)(i), and subsection 1(a), unless the Executive elects in writing a different order for cancellation. The In the event that the any Options are to be cancelled in connection with a reduction of the Acceleration, the Options shall be cancelled in the order of the Executive’s stock awards with the highest exercise price first, unless the Executive elects in writing a different order for cancellation. An accounting firm engaged or other person mutually agreed upon by the Company for general audit purposes as of the day prior to the effective date of the Change of Control parties shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm or other person required to be made hereunder. The accounting firm or other person engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Corporation Company and Executive within fifteen (15) calendar days after the date on which Executive's ’s right to Acceleration arises (if requested at that time by the Company or Executive) or at such other time as requested by the Company or Executive. If the accounting firm or other person determines that no Excise Tax is payable with respect to an Acceleration, either before or after the application of the Reduced Amount, upon request by the Company or Executive, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Acceleration. Any good faith determination of the accounting firm or other person made hereunder shall be final, binding and conclusive upon the Company and Executive.

Parachute Excise Tax. If any acceleration of In the vesting of Executive's Options under event that the payments or benefits provided to Executive by this Agreement ("Acceleration"the “Payment”), when combined with any and all other payment(s) would (i) to which Executive is entitled, constitute a "“parachute payment" payments” within the meaning of Section 280G 280G(b)(1) of the Internal Revenue Code of 1986, as amended (the "“Code"”), or any comparable successor provisions and (ii) but for this sentence, be are subject to the excise tax imposed by Section 4999 of the Code Code, or any comparable successor provisions (such excise tax, together with any interest and penalties payable with respect to such excise tax, the "“Excise Tax"”), then such Acceleration Executive shall be reduced entitled to receive from the Reduced Amount. The "Reduced Amount" Company an additional payment (the “Gross-Up Payment,” and any iterative payments pursuant to this paragraph also shall be whichever “Gross-Up Payments”) in an amount that shall fund the payment by Executive of the following which would provide the largest after-tax benefit to Executive: (i) the largest portion of the Acceleration that would result in no portion of the Acceleration being subject to the any Excise Tax or (ii) on the largest portionPayment, up to as well as all income and including employment taxes on the totalGross-Up Payment, of the Acceleration, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the any Excise Tax (imposed on the Gross-Up Payment and any interest or penalties imposed with respect to income and employment taxes imposed on the Gross-Up Payment. For this purpose, all computed income taxes will be assumed to apply to Executive at the highest applicable marginal rate). Notwithstanding the foregoing, results in Executive's receipt, on an afterthe total amount paid as Gross-tax basis, Up Payments will not exceed 20% of aggregate value of the greater amount of payments or benefits provided to Executive pursuant to Sections 3(a) and (b) hereof determined in accordance with the Acceleration notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. In the event that the Acceleration is to be reduced, such Acceleration applicable tax regulations issued under Section 280G. All determinations made under this subsection 3(c) shall be cancelled in the reverse order of the date of grant of the Executive's stock awards unless the Executive elects in writing a different order for cancellation. The made by an independent public accounting firm engaged chosen by the Company (the “Accounting Firm”). Any Gross-Up Payment shall be paid to Executive, or for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individualhis benefit, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Corporation and Executive within fifteen (15) calendar days after the date on which Executive's right to Acceleration arises (if requested at that time following receipt by the Company or Executive) or at such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect to an Acceleration, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Acceleration. Any good faith determination report of the accounting firm made Accounting Firm. Notwithstanding any provision of this subsection 3(c) to the contrary, in accordance with the requirements of section 409A of the Code, any Gross-Up Payment payable hereunder shall be finalnot later than the end of the calendar year next following the calendar year in which the Executive or Company, binding and conclusive upon as applicable, remits the Company and Executivetaxes for which the Gross-Up Payment is being paid.

Parachute Excise Tax. If any acceleration the aggregate benefits set forth in Section 2 of the vesting of Executive's Options under this Agreement ("the “Acceleration"”) would (i) constitute a "“parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "“Excise Tax"”), then such Acceleration shall be reduced to the Reduced Amount. The "“Reduced Amount" ” shall be whichever of the following which would provide the largest after-tax benefit to Executive: (i) the largest portion of the Acceleration that would result in no portion of the Acceleration being subject to the Excise Tax or (ii) the largest portion, up to and including the total, of the Acceleration, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's ’s receipt, on an after-tax basis, of the greater amount of the Acceleration notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. In the event that the Acceleration is to be reduced, such Acceleration shall be cancelled in the reverse following order: subsection 1(b)(ii), subsection 1(b)(i), and subsection 1(a). In the event that any Options are to be cancelled in connection with a reduction of the Acceleration, the Options shall be cancelled in the order of the date of grant of the Executive's ’s stock awards unless with the Executive elects in writing a different order for cancellationhighest exercise price first. The An accounting firm engaged or other person mutually agreed upon by the Company for general audit purposes as of the day prior to the effective date of the Change of Control parties shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm or other person required to be made hereunder. The accounting firm or other person engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Corporation Company and Executive within fifteen (15) calendar days after the date on which Executive's ’s right to Acceleration arises (if requested at that time by the Company or Executive) or at such other time as requested by the Company or Executive. If the accounting firm or other person determines that no Excise Tax is payable with respect to an Acceleration, either before or after the application of the Reduced Amount, upon request by the Company or Executive, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Acceleration. Any good faith determination of the accounting firm or other person made hereunder shall be final, binding and conclusive upon the Company and Executive.

Parachute Excise Tax. If any cash payments, benefits or acceleration of the vesting of Executive's the Options under this Agreement that are deemed contingent upon a Change of Control ("Acceleration"collectively “COC Benefits”) would (i) constitute a "“parachute payment" ” within the meaning of Section section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), and (ii) but for this sentence, be subject to the excise tax imposed by Section section 4999 of the Code (the "“Excise Tax"”), then such Acceleration COC Benefits shall be reduced to the Reduced Amount. The "“Reduced Amount" ” shall be whichever of the following which would provide the largest after-tax benefit to Executive: (i) the largest portion of the Acceleration COC Benefits that would result in no portion of the Acceleration COC Benefits being subject to the Excise Tax or (ii) the largest portion, up to and including the total, of the AccelerationCOC Benefits, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's your receipt, on an after-tax basis, of the greater amount of the Acceleration COC Benefits notwithstanding that all or some portion of the Payment COC Benefits may be subject to the Excise Tax. In the event that the Acceleration is COC Benefits are to be reduced, such Acceleration COC Benefits shall be cancelled in the reverse order of benefits, cash compensation and the date of grant acceleration of the Executive's stock awards Options unless the Executive elects you elect in writing a different order for cancellation. February 23, 2004 The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Corporation Company and Executive you within fifteen (15) calendar days after the date on which Executive's your right to Acceleration the COC Benefits arises (if requested at that time by the Company or Executiveyou) or at such other time as requested by the Company or Executiveyou. If the accounting firm determines that no Excise Tax is payable with respect to an Accelerationa COC Benefit, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive you with an opinion reasonably acceptable to Executive you that no Excise Tax will shall be imposed with respect to such AccelerationCOC Benefits. Any good faith determination of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executiveyou.

Parachute Excise Tax. If In the event that any acceleration of the vesting of Executive's Options amounts payable under this Agreement ("Acceleration") or otherwise to Executive would (i) constitute a "“parachute payment" payments” within the meaning of Section section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any comparable successor provisions and (ii) but for this sentence, subsection would be subject to the excise tax imposed by Section section 4999 of the Code or any comparable successor provisions (the "“Excise Tax"”), then such Acceleration amounts payable to Executive hereunder shall be reduced to the Reduced Amount. The "Reduced Amount" shall be whichever of the following which would provide the largest after-tax benefit to Executive: either: (i) provided to Executive in full; or (ii) provided to Executive to the largest portion of the Acceleration maximum extent that would result in no portion of the Acceleration such benefits being subject to the Excise Tax or (ii) the largest portion, up to and including the total, Tax; whichever of the Accelerationforegoing amounts, whichever amount, after when taking into account all applicable federal, state state, local and local foreign income and employment taxes, income taxes, and the Excise Tax (all computed at the highest and any other applicable marginal rate)taxes, results in the receipt by Executive's receipt, on an after-tax basis, of the greater greatest amount of the Acceleration benefits, notwithstanding that all or some portion of the Payment such benefits may be subject to the Excise Tax. Unless the Company and Executive otherwise agree in writing, any determination required under this subsection shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”). In the event that of a reduction in benefits hereunder, the Acceleration is reduction of the total payments shall apply as follows, notwithstanding anything to the contrary in Section 12.9 of the Company’s Seventh Restated 2002 Incentive Plan, as amended: (i) any cash severance payment due under this Agreement shall be reduced; (ii) forfeiture of any acceleration of vesting of any equity-based awards subject to section 409A of the Code, with the tranche that would vest last (without any such Acceleration acceleration) first being subject to forfeiture; (iii) any acceleration of vesting of any equity-based awards not subject to section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest, and (iv) reduction of all other payments and benefits in a manner and order of priority that provides Executive with the largest net after-tax value; provided that such other payments and benefits of equal after-tax present value shall be cancelled reduced in the reverse order of payment. Notwithstanding anything to the date of grant contrary in this Agreement, any reduction under this subsection shall be structured in a manner intended to comply with section 409A of the Executive's stock awards unless Code. For purposes of making the Executive elects in writing a different order for cancellationcalculations required by this subsection, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of the Code and other applicable legal authority. The accounting firm engaged by the Company for general audit purposes as of the day prior and Executive shall furnish to the effective date of Accountants such information and documents as the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint a nationally recognized accounting firm Accountants may reasonably request in order to make the determinations required hereundera determination under this subsection. The Company shall bear all expenses costs that the Accountants may reasonably incur in connection with any calculations contemplated by this subsection. If, notwithstanding any reduction described in this subsection, the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or, in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the Repayment Amount. The “Repayment Amount” with respect to the determinations by payment of benefits shall be the smallest such accounting firm amount, if any, that is required to be made hereunderpaid to the Company so that Executive’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) are maximized. The accounting firm engaged Repayment Amount with respect to make the determinations hereunder payment of benefits shall provide its calculationsbe zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, together with detailed supporting documentationExecutive shall pay the Excise Tax. Notwithstanding any other provision of this subsection, if (i) there is a reduction in the payment of benefits as described in this subsection, (ii) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s net after-tax proceeds (calculated as if Executive’s benefits had not previously been reduced), and (iii) Executive pays the Excise Tax, then the Company shall pay to Executive the amount by which those benefits which were reduced pursuant to this subsection as soon as administratively possible after Executive pays the Excise Tax; provided that, to the Corporation and Executive within fifteen (15) calendar days after extent required by section 409A of the date Code, the reimbursement is made on or before the last day of Executive’s taxable year following the taxable year in which Executive's the Excise Tax was paid; the right to Acceleration arises (if requested at that time by reimbursement is not subject to liquidation or exchange for another benefit; and the Company or Executive) or at such amount subject to reimbursement in one year shall not affect any other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect to an Acceleration, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Acceleration. Any good faith determination of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executiveamounts eligible for reimbursement in any other year.