Common use of Treatment of Taxes Clause in Contracts

Treatment of Taxes. If payments under this Agreement, when combined with payments and benefits under all other plans and programs maintained by the Company or the Change Entity, constitute “excess” parachute payments as defined in Section 280G(b) of the Code, the Change Entity, subject to Section 5.07[7], will either: [a] Reimburse the Executive for the amount of any excise tax due under Code §4999, if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][b]; or [b] Reduce the Executive’s benefits under this Agreement so that the Executive’s total “parachute payment” as defined in Code §280G(b)(2)(A) under this Agreement and all other agreements will be $1.00 less than the amount that would generate “excess” parachute payment penalties if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][a]. This comparison will be made as of the date of the corporate event generating the “parachute payments” although any reimbursement provided under Section 5.07[6][a] will be made when the parachute payment is actually made or distributed. Within 10 business days of the date the Change Entity determines that Section 5.07[6][b] should be applied, the Change Entity will apprise the Executive of the amount of the reduction (“Notice of Reduction”). Within 10 business days of receiving that information, the Executive may specify how (and against which benefit or payment source) the reduction is to be applied (“Notice of Allocation”). The Change Entity will be required to implement these directions within 10 business days of receiving the Notice of Allocation. If the Change Entity has not received a Notice of Allocation from the Executive within 10 business days of the date of the Notice of Reduction or if the allocation provided in the Notice of Allocation is not sufficient to fully implement Section 5.07[6][b], the Change Entity will apply Section 5.07[6][b] proportionately based on the amounts otherwise payable under this Agreement or, if a Notice of Allocation has been returned that does not sufficiently implement Section 5.07[6][b], on the basis of the reductions specified in the Notice of Allocation. Any taxes reimbursed pursuant to Section 5.07[6][a] shall be paid by the end of Executive’s taxable year next following the taxable year in which Executive remits payment of the tax or assessment being reimbursed. Any reduction pursuant to Section 5.07[6][b] shall be made in accordance with Section 409A of the Code and the Treasury Regulations promulgated thereunder.

Treatment of Taxes. If payments under this Agreement, when combined with payments and benefits under all other plans and programs maintained by the Company or the Change Entity, constitute “excessexcess parachute payments” parachute payments as defined in Section 280G(b) of the Code, the Change Entity, subject to Section 5.07[7], will either: [a] Reimburse the Executive for the amount of any excise tax due under Code §4999, if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][b]; or [b] Reduce reduce the Executive’s 's benefits under this Agreement so that the Executive’s 's total “parachute payment” as defined in Code §280G(b)(2)(A) under this Agreement and all other agreements will be $1.00 less than the amount that would generate “excessexcess parachute payment” parachute payment penalties (a “Reduction”) if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][a]. This comparison will be made as of without reducing the date of the corporate event generating the Executive's “parachute payments” although any reimbursement provided under Section 5.07[6][a] will ”. All determinations required to be made under this Section 5.07[6], including whether and when a Reduction is required and the parachute payment is actually assumptions to be utilized in arriving at such determination, shall be made in accordance with the terms of this Section 5.07[6] by a nationally recognized certified public accounting firm that shall be designated by the Executive and acceptable to the Company (the “Accounting Firm”). In connection with making determinations under this Section 5.07[6] and determining the Reduction (if any), the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or distributedafter the change of control, including, without limitation, the restrictive covenants applicable to the Executive under this Agreement and any other non-competition provisions that may apply to the Executive, and the Change Entity shall cooperate in the valuation of any such services, including any restrictive covenants. Within 10 ten (10) business days of the date the Change Entity Accounting Firm determines that Section 5.07[6][b] a Reduction should be applied, the Change Entity will apprise the Executive of the amount of the reduction (“Notice of Reduction”). Within 10 ten (10) business days of receiving that information, the Executive may may, subject to the last sentence of this paragraph, specify how (and against which benefit or payment source) the reduction Reduction is to be applied (“Notice of Allocation”). The Change Entity will be required to implement these directions within 10 ten (10) business days of receiving the Notice of Allocation. If the Change Entity has not received a Notice of Allocation from the Executive within 10 ten (10) business days of the date of the Notice of Reduction or if the allocation provided in the Notice of Allocation is not sufficient to fully implement Section 5.07[6][b]the Reduction, the Change Entity will apply Section 5.07[6][b] the Reduction proportionately based on the amounts otherwise payable under this Agreement or, if a Notice of Allocation has been returned that does not sufficiently implement Section 5.07[6][b]the Reduction, on the basis of the reductions specified in the Notice of Allocation. Any taxes reimbursed pursuant Notwithstanding anything to Section 5.07[6][a] shall be paid by the end of Executive’s taxable year next following contrary in the taxable year in which Executive remits payment of the tax or assessment being reimbursed. Any reduction pursuant to Section 5.07[6][b] foregoing, any Reduction shall be made in accordance with Section 409A of the Code and the Treasury Regulations promulgated thereunder. All fees and expenses of the Accounting Firm shall be borne solely by the Change Entity.

Treatment of Taxes. If payments under this Agreement, when combined with payments and benefits under all other plans and programs maintained by the Company or the Change Entity, constitute “excess” parachute payments as defined in Section 280G(b) of the Code, the Change Entity, subject to Section 5.07[7], will either: : [a] Reimburse the Executive for the amount of any excise tax due under Code §4999, if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][b]; or [b] Reduce the Executive’s benefits under this Agreement so that the Executive’s total “parachute payment” as defined in Code §280G(b)(2)(A) under this Agreement and all other agreements will be $1.00 less than the amount that would generate “excess” parachute payment penalties if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][a]. This comparison will be made as of the date of the corporate event generating the “parachute payments” although any reimbursement provided under Section 5.07[6][a] will be made when the parachute payment is actually made or distributed. Within 10 business days of the date the Change Entity determines that Section 5.07[6][b] should be applied, the Change Entity will apprise the Executive of the amount of the reduction (“Notice of Reduction”). Within 10 business days of receiving that information, the Executive may specify how (and against which benefit or payment source) the reduction is to be applied (“Notice of Allocation”). The Change Entity will be required to implement these directions within 10 business days of receiving the Notice of Allocation. If the Change Entity has not received a Notice of Allocation from the Executive within 10 business days of the date of the Notice of Reduction or if the allocation provided in the Notice of Allocation is not sufficient to fully implement Section 5.07[6][b], the Change Entity will apply Section 5.07[6][b] proportionately based on the amounts otherwise payable under this Agreement or, if a Notice of Allocation has been returned that does not sufficiently implement Section 5.07[6][b], on the basis of the reductions specified in the Notice of Allocation. Any taxes reimbursed pursuant to Section 5.07[6][a] shall be paid by the end of Executive’s taxable year next following the taxable year in which Executive remits payment of the tax or assessment being reimbursed. Any reduction pursuant to Section 5.07[6][b] shall be made in accordance with Section 409A of the Code and the Treasury Regulations promulgated thereunder.

Treatment of Taxes. If payments under this Agreement, when combined with payments and benefits under all other plans and programs maintained by the Company or the Change Entity, constitute “excess” parachute payments as defined in Section 280G(b) of the Code, the Change Entity, subject to Section 5.07[7], will either: [a] Reimburse the Executive for the amount of any excise tax due under Code §4999, if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][b]; or [b] Reduce the Executive’s benefits under this Agreement so that the Executive’s total “parachute payment” as defined in Code §280G(b)(2)(A) under this Agreement and all other agreements will be $1.00 less than the amount that would generate “excess” parachute payment penalties if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][a]. This comparison will be made as of the date of the corporate event generating the “parachute payments” although any reimbursement provided under Section 5.07[6][a] will be made when the parachute payment is actually made or distributed. Within 10 business days of the date the Change Entity determines that Section 5.07[6][b] should be applied, the Change Entity will apprise the Executive of the amount of the reduction (“Notice of Reduction”). Within 10 business days of receiving that information, the Executive may specify how (and against which benefit or payment source) the reduction is to be applied (“Notice of Allocation”). The Change Entity will be required to implement these directions within 10 business days of receiving the Notice of Allocation. If the Change Entity has not received a Notice of Allocation from the Executive within 10 business days of the date of the Notice of Reduction or if the allocation provided in the Notice of Allocation is not sufficient to fully implement Section 5.07[6][b], the Change Entity will apply Section 5.07[6][b] proportionately based on the amounts otherwise payable under this Agreement or, if a Notice of Allocation has been returned that does not sufficiently implement Section 5.07[6][b], on the basis of the reductions specified in the Notice of Allocation. Any taxes reimbursed pursuant to Section 5.07[6][a] shall be paid by the end of Executive’s taxable year next following the taxable year in which Executive remits payment of the tax or assessment being reimbursed. Any reduction pursuant to Section 5.07[6][b] shall be made in accordance with Section 409A of the Code and the Treasury Regulations promulgated thereunder.

Treatment of Taxes. If payments under this Agreement, when combined with payments and benefits under all other plans and programs maintained by the Company or the Change Entity, constitute “excess” parachute payments as defined in Section 280G(b) of the Code, the Change Entity, subject to Section 5.07[7], will either: [a] Reimburse the Executive for the amount of any excise tax due under Code §4999, if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][b]; or [b] Reduce the Executive’s benefits under this Agreement so that the Executive’s total “parachute payment” as defined in Code §280G(b)(2)(A) under this Agreement and all other agreements will be $1.00 less than the amount that would generate “excess” parachute payment penalties if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][a]. This comparison will be made as of the date of the corporate event generating the “parachute payments” although any reimbursement provided under Section 5.07[6][a] will be made when the parachute payment is actually made or distributed. Within 10 business days of the date the Change Entity determines that Section 5.07[6][b] should be applied, the Change Entity will apprise the Executive of the amount of the reduction (“Notice of Reduction”). Within 10 business days after receiving the Notice of receiving that informationReduction, the Executive may specify how (and against which benefit or payment source) the reduction is to be applied (“Notice of Allocation”). The Change Entity will be required to implement these directions within 10 business days of after receiving the Notice of Allocation. If the Change Entity has not received a Notice of Allocation from the Executive within 10 business days of after the date of the Notice of Reduction or if the allocation provided in the Notice of Allocation is not sufficient to fully implement Section 5.07[6][b], then the Change Entity will apply Section 5.07[6][b] proportionately based on the amounts otherwise payable under this Agreement or, if a Notice of Allocation has been returned that does not sufficiently implement Section 5.07[6][b], on the basis of the reductions specified in the Notice of Allocation. Any taxes reimbursed pursuant to Section 5.07[6][a] shall be paid by the end of Executive’s taxable year next following the taxable year in which Executive remits payment of the tax or assessment being reimbursed. Any reduction pursuant to Section 5.07[6][b] shall be made in accordance with Section 409A of the Code and the Treasury Regulations promulgated thereunder.

Treatment of Taxes. If payments under this Agreement, when combined with payments and benefits under all other plans and programs maintained by the Company or the Change Entity, constitute “excess” parachute payments as defined in Section 280G(b) of the Code, the Change Entity, subject to Section 5.07[7], will either: [a] Reimburse the Executive for the amount of any excise tax due under Code §4999, if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][b]; or [b] Reduce the Executive’s benefits under this Agreement so that the Executive’s total “parachute payment” as defined in Code §280G(b)(2)(A) under this Agreement and all other agreements will be $1.00 less than the amount that would generate “excess” parachute payment penalties if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][a]. This comparison will be made as of the date of the corporate event generating the “parachute payments” although any reimbursement provided under Section 5.07[6][a] will be made when the parachute payment is actually made or distributed. Within 10 business days of the date the Change Entity determines that Section 5.07[6][b] should be applied, the Change Entity will apprise the Executive of the amount of the reduction (“Notice of Reduction”). Within 10 business days after receiving the Notice of receiving that informationReduction, the Executive may specify how (and against which benefit or payment source) the reduction is to be applied (“Notice of Allocation”). The Change Entity will be required to implement these directions within 10 business days of after receiving the Notice of Allocation. If the Change Entity has not received a Notice of Allocation from the Executive within 10 business days of after the date of the Notice of Reduction or if the allocation provided in the Notice of Allocation is not sufficient to fully implement Section 5.07[6][b], then the Change Entity will apply Section 5.07[6][b] proportionately based on the amounts otherwise payable under this Agreement or, if a Notice of Allocation has been returned that does not sufficiently implement Section 5.07[6][b], on the basis of the reductions specified in the Notice of Allocation. Any taxes reimbursed pursuant to Section 5.07[6][a] shall be paid by the end of Executive’s taxable year next following the taxable year in which Executive remits payment of the tax or assessment being reimbursed. Any reduction pursuant to Section 5.07[6][b] shall be made in accordance with Section 409A of the Code and the Treasury Regulations promulgated thereunder.

Treatment of Taxes. If payments i. Notwithstanding any provision in this Agreement to the contrary, if the Employer or the Change Entity (as defined in Section 6(b)(iii) below) (after consulting with an independent accounting or compensation consulting company) ascertains that the compensation and benefits provided to the Executive pursuant to or under this Agreement, either alone or when combined with payments other compensation and benefits under all other plans and programs maintained received by the Company Executive (other than the amounts described in Sections 6.9 and 6.10 of the SERP), would constitute “excess parachute payments” within the meaning of Section 280G of the Code, or the Treasury Regulations promulgated thereunder, then such compensation and benefits shall be (retroactively, if necessary) reduced by the minimum extent necessary to avoid the excise taxes described in Section 4999 of the Code (the “Excise Taxes”), which reduction shall comply with Section 409A of the Code. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, if any portion of the amount herein payable to the Executive is determined to be non-deductible pursuant to the Treasury Regulations promulgated under Section 280G of the Code, the Employer shall be required only to pay to the Executive the amount determined to be deductible under Section 280G of the Code. ii. If the Internal Revenue Service subsequently and finally decides that the amount of compensation and benefits (including after the reduction applied under this Section 6(b)) will generate Excise Taxes or a loss of deduction under Section 280G of the Code with respect to the compensation and benefits (other than those amounts described in Sections 6.9 and 6.10 of the SERP), the Executive will immediately remit an additional amount to the Employer or the Change Entity, constitute “excess” parachute payments as defined applicable, equal to the difference between the amount paid (other than those amounts described in Sections 6.9 and 6.10 of the SERP) and the minimum amount necessary to avoid the imposition of Excise Taxes or a loss of deduction under Section 280G(b) 280G of the Code. Also, the Executive agrees to promptly notify the Employer or the Change Entity, as applicable, of an assessment or inquiry from the Internal Revenue Service relating to payments under this Agreement that would, if made final, result in imposition of an Excise Tax or a loss of deduction under Section 280G of the Code and also agrees to cooperate in resisting any Excise Tax assessment. However, the Employer or the Change Entity, as applicable, will have complete control over resolution of any claim by the Internal Revenue Service that might generate an Excise Tax or a loss of deduction under Section 280G of the Code (although it will have no dispositive power over any other tax matter that may be subject to Section 5.07[7]the same audit) and the Employer or the Change Entity, as applicable, will eitherbear all costs associated with that effort provided that any costs paid or reimbursed by the Employer or the Change Entity shall be subject to the following limitations: [a] Reimburse (A) the Executive costs eligible for payment shall include any costs arising during the lifetime of the Executive; (B) the amount of costs paid during any excise tax due under Code §4999, if this procedure provides taxable year of the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][b]; or [b] Reduce the Executive’s benefits under this Agreement so that the Executive’s total “parachute payment” as defined in Code §280G(b)(2)(A) under this Agreement and all other agreements will be $1.00 less than the amount that would generate “excess” parachute payment penalties if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][a]. This comparison will be made as of the date of the corporate event generating the “parachute payments” although any reimbursement provided under Section 5.07[6][a] will be made when the parachute payment is actually made or distributed. Within 10 business days of the date the Change Entity determines that Section 5.07[6][b] should be applied, the Change Entity will apprise the Executive of may not affect the amount of the reduction (“Notice of Reduction”). Within 10 business days of receiving that information, the Executive may specify how (and against which benefit or costs eligible for payment source) the reduction is to be applied (“Notice of Allocation”). The Change Entity will be required to implement these directions within 10 business days of receiving the Notice of Allocation. If the Change Entity has not received a Notice of Allocation from the Executive within 10 business days in any other taxable year of the date of the Notice of Reduction or if the allocation provided in the Notice of Allocation is not sufficient to fully implement Section 5.07[6][b], the Change Entity will apply Section 5.07[6][b] proportionately based on the amounts otherwise payable under this Agreement or, if a Notice of Allocation has been returned that does not sufficiently implement Section 5.07[6][b], on the basis of the reductions specified in the Notice of Allocation. Any taxes reimbursed pursuant to Section 5.07[6][a] Executive; (C) any costs being paid shall be paid by no later than the end last day of the Executive’s taxable year next following the taxable year in which Executive remits they were incurred; and (D) the right to payment may not be subject to liquidation or exchange for another benefit. iii. For purposes of this Section 6(b), “Change Entity” shall mean, in the tax or assessment being reimbursed. Any reduction pursuant to Section 5.07[6][b] shall be made event of a Change in accordance Control, the Employer and any entity with Section 409A of which the Code and the Treasury Regulations promulgated thereunderEmployer effects a Change in Control.

Treatment of Taxes. If payments under this Agreement, when combined with payments and benefits under all other plans and programs maintained by the Company or the Change EntityCompany, constitute “excess” parachute payments as defined in Section 280G(b) of the Code, the Change EntityCompany, subject to Section 5.07[7Subsection 5.07[4], will either: [a] Reimburse the Executive for the amount of any excise tax due under Code §4999, if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][bSubsection 5.07[3][b]; or [b] Reduce the Executive’s benefits under this Agreement so that the Executive’s total “parachute payment” as defined in Code §280G(b)(2)(A) under this Agreement and all other agreements will be $1.00 less than the amount that would generate be an “excess” parachute payment penalties if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][aSubsection 5.07[3][a]. This comparison will be made as of the date of the corporate event generating the “parachute payments” although any reimbursement provided under Section 5.07[6][aSubsection 5.07[3][a] will be made when the parachute payment is actually made or distributed. Within 10 business days of the date the Change Entity Company determines that Section 5.07[6][bSubsection 5.07[3][b] should be applied, the Change Entity Company will apprise the Executive of the amount of the reduction (“Notice of Reduction”). Within 10 business days of receiving that information, the Executive may specify how (and against which benefit or payment source) the reduction is to be applied (“Notice of Allocation”). The Change Entity Company will be required to implement these directions within 10 business days of receiving the Notice of Allocation. If the Change Entity Company has not received a Notice of Allocation from the Executive within 10 business days of the date of the Notice of Reduction or if the allocation provided in the Notice of Allocation is not sufficient to fully implement Section 5.07[6][bSubsection 5.07[3][b], the Change Entity Company will apply Section 5.07[6][bSubsection 5.07[3][b] proportionately based on the amounts otherwise payable under this Agreement or, if a Notice of Allocation has been returned that does not sufficiently implement Section 5.07[6][bSubsection 5.07[3][b], on the basis of the reductions specified in the Notice of Allocation. Any taxes reimbursed pursuant to Section 5.07[6][a] shall be paid by the end of Executive’s taxable year next following the taxable year in which Executive remits payment of the tax or assessment being reimbursed. Any reduction pursuant to Section 5.07[6][b] shall be made in accordance with Section 409A of the Code and the Treasury Regulations promulgated thereunder.

Treatment of Taxes. If payments under this Agreement, when combined with payments and benefits under all other plans and programs maintained by the Company or the Change Entity, constitute “excess” parachute payments as defined in Section 280G(b) of the Code, the Change Entity, subject to Section 5.07[7], will either: [a] Reimburse the Executive for the amount of any excise tax due under Code §4999, if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][b]; or 15 Initials CWH Date June 6, 2005 [b] Reduce the Executive’s benefits under this Agreement so that the Executive’s total “parachute payment” as defined in Code §280G(b)(2)(A) under this Agreement and all other agreements will be $1.00 less than the amount that would generate “excess” parachute payment penalties if this procedure provides the Executive with an after-tax amount that is larger than the after-tax amount produced under Section 5.07[6][a]. This comparison will be made as of the date of the corporate event generating the “parachute payments” although any reimbursement provided under Section 5.07[6][a] will be made when the parachute payment is actually made or distributed. Within 10 business days of the date the Change Entity determines that Section 5.07[6][b] should be applied, the Change Entity will apprise the Executive of the amount of the reduction (“Notice of Reduction”). Within 10 business days of receiving that information, the Executive may specify how (and against which benefit or payment source) the reduction is to be applied (“Notice of Allocation”). The Change Entity will be required to implement these directions within 10 business days of receiving the Notice of Allocation. If the Change Entity has not received a Notice of Allocation from the Executive within 10 business days of the date of the Notice of Reduction or if the allocation provided in the Notice of Allocation is not sufficient to fully implement Section 5.07[6][b], the Change Entity will apply Section 5.07[6][b] proportionately based on the amounts otherwise payable under this Agreement or, if a Notice of Allocation has been returned that does not sufficiently implement Section 5.07[6][b], on the basis of the reductions specified in the Notice of Allocation. Any taxes reimbursed pursuant to Section 5.07[6][a] shall be paid by the end of Executive’s taxable year next following the taxable year in which Executive remits payment of the tax or assessment being reimbursed. Any reduction pursuant to Section 5.07[6][b] shall be made in accordance with Section 409A of the Code and the Treasury Regulations promulgated thereunder.