Common use of Payment Adjustment Clause in Contracts

Payment Adjustment. If the independent accountants acting as auditors for Holding Company on the date of a Change in Control (or another accounting firm designated by the parties) determine, in consultation with legal counsel acceptable to the parties, that any amount payable to Executive by Holding Company under this Agreement, or any other plan or agreement under which Executive participates or is a party, would constitute an "excess parachute payment" within the meaning of Section 280G of the Code, and any regulations thereunder, and be subject to the "excise tax" imposed by Section 4999 of the Code, Holding Company shall pay to Executive the amount of such excise tax and all federal and state income or other taxes with respect to the payment of the amount of such excise tax, including all such taxes with respect to any such additional amount. If at a later date, the Internal Revenue Service assesses a deficiency against Executive for the excise tax which is greater than that which was determined at the time such amounts were paid, if any, Holding Company shall pay to Executive the amount of such excise tax plus any interest, penalties and professional fees or expenses, incurred by Executive as a result of such assessment, including all such taxes with respect to any such additional amount. The highest marginal tax rate applicable to individuals at the time of payment of such amounts will be used for purposes of determining the federal and state income and other taxes with respect thereto. Holding Company shall withhold from any amounts paid under this Agreement the amount of any excise tax or other federal, state or local taxes then required to be withheld. Computations of the amount of any supplemental compensation paid under this Section 2.4 shall be made by the independent public accountants then regularly retained by Holding Company, in consultation with legal counsel acceptable to the parties. Holding Company shall pay all accountant and legal counsel fees and expenses.

Payment Adjustment. If the independent accountants acting as auditors for Holding Company SFMC on the date of a Change in Control (or another accounting firm designated by the parties) determine, in consultation with legal counsel acceptable to the parties, that any amount payable to Executive by Holding Company SFMC under this Agreement, or any other plan or agreement under which Executive participates or is a party, would constitute an "excess parachute payment" within the meaning of Section 280G of the Code, and any regulations thereunder, and be subject to the "excise tax" imposed by Section 4999 of the Code, Holding Company SFMC shall pay to Executive the amount of such excise tax and all federal and state income or other taxes with respect to the payment of the amount of such excise tax, including all such taxes with respect to any such additional amount. If at a later date, the Internal Revenue Service assesses a deficiency against Executive for the excise tax which is greater than that which was determined at the time such amounts were paid, if any, Holding Company SFMC shall pay to Executive the amount of such excise tax plus any interest, penalties and professional fees or expenses, incurred by Executive as a result of such assessment, including all such taxes with respect to any such additional amount. The highest marginal tax rate applicable to individuals at the time of payment of such amounts will be used for purposes of determining the federal and state income and other taxes with respect thereto. Holding Company SFMC shall withhold from any amounts paid under this Agreement the amount of any excise tax or other federal, state or local taxes then required to be withheld. Computations of the amount of any supplemental compensation paid under this Section 2.4 shall be made by the independent public accountants then regularly retained by Holding CompanySFMC, in consultation with legal counsel acceptable to the parties. Holding Company SFMC shall pay all accountant and legal counsel fees and expenses." In all other respects, Holding Company, SFMC and Executive hereby confirm the Agreement, as herein amended, reserving to Holding Company, SFMC and Executive the joint right further to amend or revoke, in whole or in part, the Agreement and this amendment thereto.