Excise Tax Limitation. (a) Payment Limitation. Notwithstanding anything contained in this Amended Agreement (or in any other agreement between the Executive and the Company) to the contrary, to the extent that any payments and benefits provided under this Amended Agreement or any other plan or agreement of the Company (such payments or benefits are collectively referred to as the "Payments") would be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Code, the Payments shall be reduced if
... and to the extent that a reduction in the Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than he would have retained had he been entitled to receive all of the Payments (such reduced amount is hereinafter referred to as the "Limited Payment Amount"). The Company shall reduce the Payments by first reducing or eliminating payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, in In each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date the "Determination" (as defined in Section 7(b) below) is delivered to the Company and the Executive. (b) Determination and Dispute. The determination as to whether the Payments shall be reduced to the Limited Payment Amount and the amount of such Limited Payment Amount (the "Determination") shall be made at the Company's expense by an accounting or consulting firm selected by the Company and reasonably acceptable to the Executive (the "Firm"). The Firm shall provide the Determination in writing, together with detailed supporting calculations and documentation, to the Company and the Executive on or prior to the effective date of termination of the Executive's employment if applicable, or at such other time as requested by the Company or by the Executive. Within ten (10) days of the delivery of the Determination to the Executive, the Executive shall have the right to dispute the Determination (the "Dispute") in writing setting forth the precise basis of the Dispute. dispute. If there is no Dispute, the Determination shall be binding, final and conclusive upon the Company and the Executive. 13 (c) Excise Tax is Obligation of the Executive. Any Excise Tax with respect to the Executive's Payments shall be the sole obligation of the Executive, subject to any tax withholding obligation imposed on the Company with respect thereto. 10 8. Compliance with Section 409(A). This Amended Agreement is intended to comply with the requirements of Section 409A of the Code, and shall be interpreted and construed consistently with such intent. The payments to the Executive pursuant to this Amended Agreement are also intended to be exempt from Section 409A of the Code to the maximum extent possible, under either the separation pay exemption pursuant to Treasury regulation § 1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury regulation § 1.409A-1(b)(4). In the event the terms of this Amended Agreement would subject the Executive to taxes or penalties under Section 409A of the Code ("409A Penalties"), the Company and the Executive shall cooperate diligently to amend the terms of the Amended Agreement to avoid such 409A Penalties, to the extent possible; provided that such amendment shall not increase or reduce (in the aggregate) the amounts payable to the Executive hereunder. Any payments due pursuant to this Amended Agreement shall be payable to the Executive no later than two-and-a-half months following the end of the taxable year in which the payments are earned (subject to a reasonable delay in payment due to an unforeseeable event making it administratively impracticable to make the payment by such time), and in no event shall the payments be made later than the end of the taxable year following the taxable year in which the payments are earned. Any taxable reimbursement payable to the Executive pursuant to this Amended Agreement shall be paid to the Executive no later than the last day of the calendar year following the calendar year in which the Executive incurred the reimbursable expense. Any amount of expenses eligible for taxable reimbursement, or such in-kind benefit provided, during a calendar year shall not affect the amount of such expenses eligible for reimbursement, or such in-kind benefit to be provided, during any other calendar year. The right to such reimbursement or such in-kind benefits pursuant to this Amended Agreement shall not be subject to liquidation or exchange for any other benefit. Any right to a series of installment payments pursuant to this Amended Agreement is to be treated as a right to a series of separate payments.
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Excise Tax Limitation. (a)
Payment Limitation. Notwithstanding anything contained in this
Amended Agreement
(or in any other agreement between the Executive and the Company) to the contrary,
to in the
extent event that
any the benefits provided by this Agreement, together with all other payments and
the value of any benefits
provided under this Amended Agreement received or
any other plan or agreement to be received by Executive ("Payments"), constitute "parachute payments" within the meaning of Section 280G of the
... class="diff-color-red">Company (such payments or benefits are collectively referred to as the "Payments") Code, and, but for this Section 5, would be subject to the excise tax (the "Excise Tax") imposed under by Section 4999 of the Code, Code (the "Excise Tax"), then the Payments shall be reduced if and made to the extent that a reduction Executive either (i) in the Payments full or (ii) as to such lesser amount as would result in no portion of the Executive retaining a larger amount, on an after-tax basis (taking Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax), than he would have retained had he been entitled to receive Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of the Payments (such reduced amount is hereinafter referred may be subject to as the "Limited Payment Amount"). Excise Tax. The Company Corporation shall reduce or eliminate the Payments by first reducing or eliminating cash payments and then by reducing those payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, cash, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date Determination (as hereinafter defined). (b) Unless the "Determination" (as defined Corporation and Executive otherwise agree in Section 7(b) below) is delivered to the Company and the Executive. (b) Determination and Dispute. The writing, an initial determination as to whether the Payments shall be reduced to the Limited Payment Amount and the amount of such Limited Payment Amount (the "Determination") reduction shall be made made, at the Company's expense by an accounting or consulting firm selected Corporation's expense, by the Company and reasonably acceptable to accounting firm that is the Executive Corporation's independent accounting firm as of the date of the Change in Control (the "Firm"). "Accounting Firm"). The Accounting Firm shall provide the Determination in writing, its determination (the "Determination"), together with 6 detailed supporting calculations and documentation, to the Company Corporation and the Executive on or prior to the effective date of termination within twenty (20) days of the Executive's employment Date of Termination if applicable, or at such other time as requested by the Company Corporation or by Executive (provided Executive reasonably believes that Executive will receive Payments which may be subject to the Executive. Excise Tax), and if the Accounting Firm determines that there is substantial authority (within the meaning of Section 6662 of the Code) that no Excise Tax is payable by Executive with respect to a Payment or Payments, it shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to any such Payment or Payments. Within ten (10) days of the delivery of the Determination to the Executive, the Executive shall have the right to dispute the Determination (the "Dispute") in writing setting forth the precise basis of the Dispute. "Dispute"). If there is no Dispute, the Determination shall be binding, final and conclusive upon the Company Corporation and the Executive. 13 (c) Excise Tax is Obligation As a result of the Executive. Any Excise Tax with respect uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that the Payments to be made to, or provided for the benefit of, Executive either will be greater (an "Excess Payment") or less (an "Underpayment") than the amounts provided for by the limitation contained in Section 5(a). (i) If it is established pursuant to a final determination of a court or an Internal Revenue Service (the "IRS") proceeding which has been finally and conclusively resolved that an Excess Payment has been made, such Excess Payment shall be deemed for all purposes to be a loan to Executive made on the date Executive received the Excess Payment and Executive shall repay the Excess Payment to the Executive's Payments shall be Corporation on demand (but not less than ten (10) days after written notice is received by Executive) together with interest on the sole obligation Excess Payment at the "Applicable Federal Rate" (as defined in Section 1274(d) of the Executive, subject Code) from the date of Executive's receipt of such Excess Payment until the date of such repayment. (ii) In the event that it is determined by (A) the Accounting Firm, the Corporation (which shall include the position taken by the Corporation, or together with its consolidated group, on its federal income tax return) or the IRS, (B) pursuant to any tax withholding obligation imposed a determination by a court, or (C) upon the resolution to Executive's satisfaction of the Dispute that an Underpayment has occurred, the Corporation shall pay an amount equal to the Underpayment to Executive within ten (10) days of such determination or resolution, together with interest on such amount at the Company with respect thereto. Applicable Federal Rate from the date such amount would have been paid to Executive until the date of payment.
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