Common use of Application of this Section Clause in Contracts

Application of this Section. In the event that payments and other benefits under this Agreement (the “Agreement Payments”) and payments and benefits otherwise provided to the Employee under any other plan or arrangement (“Total Payments”) would constitute “parachute payments” within the meaning of section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and would be subject to the excise tax imposed by section 4999 of the Code (the “Excise Tax”), then the Agreement Payments shall be either: (i) delivered in full; or (ii) delivered to the extent that maximizes the value of the Agreement Payments without causing any portion of the Total Payments to be subject to the Excise Tax (the “Reduced Amount”), whichever of the foregoing amounts, taking into account the effect of all federal, state and local income taxes, employment taxes and excise taxes applicable to the Employee (including the Excise Tax), results in the receipt by the Employee, on an after-tax basis, of the greatest amount of Agreement Payments. The foregoing determination shall be made by the independent auditors most recently selected by the Board (the “Auditors”).