Special Tax Provision. (a) Anything in this Agreement to the --------------------- contrary notwithstanding, in the event that any amount or benefit paid, payable, or to be paid, or distributed, distributable, or to be distributed to or with respect to Executive by the Company (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Code Section 280G(b)(2) or any person affiliated with the Company or such person) as a result of a change in ownership or effective control of the Company or a direct or indirect parent thereof (or the assets of any of the foregoing) covered by Code Section 280G(b)(2) (collectively, the "Covered Payments") is or becomes subject to the excise tax imposed by or under Section 4999 of the Code (or any similar tax that may hereafter be imposed), and/or any interest, penalties or additions to tax, with respect to such excise tax (such excise tax, together with such interest penalties and additions to tax, is hereinafter collectively referred to as the "Excise Tax"), the Company shall pay to Executive an additional amount (the "Tax Reimbursement Payment") such that after payment by Executive of all taxes (including, without limitation, any interest or penalties and any Excise Tax imposed on or attributable to the Tax Reimbursement Payment itself), Executive retains an amount of the Tax Reimbursement Payment equal to the sum of (i) the amount of the Excise Tax imposed upon the Covered Payments, and (ii) without duplication, an amount equal to the product of (A) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Tax Reimbursement Payment in Executive's adjusted gross income, and (B) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Tax Reimbursement Payment is made or is to be made. The intent of this Section 13 is that (a) the Executive, after paying his federal, state and local income tax and payroll taxes, will be in the same position as if he was not subject to the Excise Tax under Section 4999 of the Code and did not receive the extra payments pursuant to this Section 13 and this Section 13 shall be interpreted accordingly.
(b) Except as otherwise provided in Section 13(a), for purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amo...
Special Tax Provision. If any payment or payments to be made to Employee by Employer following the termination of Employee, whether such payments are to be made under this Agreement or otherwise, would result in Employee incurring any excess parachute payment excise tax under Internal Revenue Code Sections 280G and 4999, then those payments that are to be made to Employee under this Agreement and that constitute "parachute payments" (as that term is defined under Section 280G) will be reduced to the extent necessary to eliminate any "excess parachute payments" (as that term is defined under Section 280G) to Employee. If such reductions are to be made, Employee will determine which payments will be reduced.
Special Tax Provision. The Agreement is hereby amended by deleting Section 5(c) in its entirety and substituting the following:
Special Tax Provision. (a) Anything in this Agreement or in any other agreement between the Company and Executive or in any equity incentive or other benefit plan to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 7) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross‑Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (including the tax provided for under Section 409A of the Code and including any interest and penalties imposed with respect to income taxes of any nature) and Excise Tax imposed upon the Gross‑Up Payment, Executive retains an amount of the Gross‑Up Payment equal to the Excise Tax imposed upon the Payments.
Special Tax Provision. Notwithstanding anything to the contrary, if the amounts payable to Executive hereunder, either alone or together with other “parachute payments” (as defined in Code Section 280G(b)(2)(A)) (such amounts collectively are referred to herein as the “Severance Payment”), would constitute an “excess parachute payment” (as defined in Code Section 280G(b)(1)), then the Severance Payment shall be reduced to the minimum extent necessary so that no portion of the Severance Payment will be subject to the excise tax imposed by Code Section 4999 (the “Reduced Severance Payment”); provided however, that no reduction to the Severance Payment shall occur if the Severance Payment, less any excise tax which would be imposed on such payment pursuant to Code Section 4999, would be greater than the Reduced Severance Payment. The determination of any reduction in the Severance Payment pursuant to the foregoing provision shall be made by independent counsel to the Company in consultation with the independent certified public accountants and/or auditors of the Company.
Special Tax Provision. The income, gain, loss or deduction with respect to an asset contributed to the capital of the Company by a member shall, in accordance with Section 704(c) of the Internal Revenue Code and solely for tax purposes, be allocated between the members so as to take into account any variation between the adjusted income tax basis of the property to the Company and its actual value when contributed.
Special Tax Provision. If any payment or payments to be made to the Employee by the Company following the termination of the Employee's employment, whether such payments are to be made under this Agreement or otherwise, would result in Employee incurring any excess parachute payment excise tax under IRC Sections 280G and 4999, then those payments that are to be made to Employee under this Agreement and that constitute "parachute payments" (as that term is defined under IRC Section 280G) shall be reduced or delayed to the extent necessary to eliminate any "excess parachute payments" (as that term is defined under IRC Section 280G) to Employee; provided, however, that such reductions or delays shall be made if, and only if (A), below, is greater than (B), below, where: (A) equals the present value as of the date of termination of Employee's employment of the total payments to be made to the Employee after such reductions or delays; and (B) equals the present value as of the date of termination of the Employee's employment of the total payments to be made to the Employee in the absence of such reduction and after application of the 20% excise tax on excess parachute payments. If such reductions or delays are to be made, the Employee shall determine which payments shall be reduced or delayed. Employee's determination as to whether reductions or delays are called for under this Paragraph shall be final and binding, if reasonable. If the Company fails to accept any reasonable determination of Employee under this Paragraph, the Company shall reimburse Employee for all expenses and losses (including but not limited to attorney fees and any additional taxes or interest or penalties on unpaid taxes) incurred by Employee as a result of the Company's failure to accept such determinations.
Special Tax Provision. Notwithstanding any provision to the contrary in this Agreement, no payments or benefits to which Xxxxxxx may become entitled under Section 3 or 11.B of this Agreement shall be made or provided to him prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of his “separation from service” with the Company (as determined in accordance with the provisions of Code Section 409A and the Treasury Regulations thereunder) or (ii) the date of his death, if Xxxxxxx is deemed at the time of such separation from service to be a “key employee” within the meaning of that term under Code Section 416(i) and such delayed commencement is otherwise required in order to avoid a prohibited distribution under Code Section 409A(a)(2). Upon the expiration of the applicable Code Section 409A(a)(2) deferral period, all payments and benefits deferred pursuant to this Section 12 (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) shall be paid or reimbursed to Xxxxxxx in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
Special Tax Provision. If Newco or RIG receives any Tax refund attributable to the period prior to the Closing, then the amount of such refund shall be applied to any indemnification obligation of the Shareholders or, if prior to Closing, the Company, determined in accordance with this Article VIII.
Special Tax Provision. If the Company or RIGINC receives any Tax ---------------------- refund attributable to the period prior to the Closing, then the amount of such refund shall reduce the amount of claims, if any, of RIGINC against the Stockholders for breach of the representations and warranties in Section 3.24 or of the covenants in Section 5.1.
