Common use of Certain Excise Taxes Clause in Contracts

Certain Excise Taxes. If Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the separation payments and benefits provided for in this Agreement, together with any other payments and benefits which such Executive has the right to receive from Parent or any of its Affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Parent and its Affiliates will be one dollar less than three times Executive's “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The determination as to whether any such reduction in the amount of the payments provided hereunder is necessary shall be made by Parent in good faith. If a reduced payment is made and through error or otherwise that payment, when aggregated with other payments and benefits from Parent (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar less than three times Executive's base amount, then Executive shall immediately repay such excess to Parent (or its Affiliates) upon notification that an overpayment has been made. Nothing in this Section 1(e) shall require Parent or Employer to be responsible for, or have any liability or obligation with respect to, Executive's excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. If Notwithstanding anything to the contrary in this Agreement, if the Executive is a “disqualified individual” (as defined in Code Section 280G(c) of the Code)), and the separation payments and benefits provided for in this Agreement, together with any other payments and benefits which such the Executive has the right to receive from Parent the Company or any of its Affiliates, would constitute a “parachute payment” (as payment”(as defined in Code Section 280G(b)(2) of the Code)), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by the Executive from the Parent Company and its Affiliates will be one dollar ($1.00) less than three (3) times Executive's ’s “base amount” (as amount”(as defined in Code Section 280G(b)(3) of the Code)) and so that no portion of such amounts and benefits received by the Executive shall be subject to the excise tax imposed by Code Section 4999 of the Code or (b) paid in full, whichever produces the better net after-after tax position to the Executive (taking into account any applicable excise tax under Code Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits mentioned hereunder, as applicable, shall be made by reducing such payments and benefits first, to the extent of any severance payments due pursuant to Article 3 paid in cash, with later payments being reduced first. Thereafter, the reduction shall be made by: (A) the waiver of accelerated vesting of equity awards, with awards having a later vesting date being reduced first; (B) next, cutting back on the benefit continuation pursuant to Section 3; and (C) lastly, reducing all other payments or benefits, with later payments being reduced first. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by Parent Holdings in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that paymentpayment or benefit, when aggregated with other payments and benefits from Parent the Company (or its Affiliates) used in determining if a “parachute payment” payment exists, exceeds one dollar ($1.00) less than three (3) times the Executive's ’s base amount, then the Executive shall immediately repay such excess to Parent (or its Affiliates) the Company upon notification that an overpayment has been made. In the event any reduction under this Agreement is disputed by the Executive, then determinations required to be made under this Section 3.04, including the assumptions to be utilized in arriving at such determination, shall be made by an outside nationally recognized accounting or consulting firm selected by Holdings or the Board, in its reasonable discretion (the “Accounting Firm”), which shall provide detailed supporting calculations both to Holdings and the Executive within 15 business days of the receipt of notice from the Executive that there has been a payment hereunder, or such earlier time as is requested by Holdings. In no event shall the Accounting Firm be an accounting firm that was, or is, serving as accountant or auditor for the individual, entity or group affecting the change of ownership or effective control of Holdings. Nothing in this Section 1(e) 3.04 shall require Parent the Company or Employer Holdings (or any of their respective Affiliates) to be responsible for, or have any liability or obligation with respect to, the Executive's ’s excise tax liabilities under Code Section 4999 of the Code4999.

Certain Excise Taxes. If Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the separation payments and benefits provided for in this Agreement, together with any other payments and benefits which such Executive has the right to receive from Parent or any of its Affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Parent and its Affiliates will be one dollar less than three times Executive's ’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The determination as to whether any such reduction in the amount of the payments provided hereunder is necessary shall be made by Parent in good faith. If a reduced payment is made and through error or otherwise that payment, when aggregated with other payments and benefits from Parent (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar less than three times Executive's ’s base amount, then Executive shall immediately repay such excess to Parent (or its Affiliates) upon notification that an overpayment has been made. Nothing in this Section 1(e1(g) shall require Parent or Employer to be responsible for, or have any liability or obligation with respect to, Executive's ’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. If Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the separation payments and benefits provided for in this Agreement, together with any other payments and benefits which such Executive has the right to receive from Parent or any of its Affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Parent and its Affiliates will be one dollar less than three times Executive's ’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The determination as to whether any such reduction in the amount of the payments provided hereunder is necessary shall be made by Parent in good faith. If a reduced payment is made and through error or otherwise that payment, when aggregated with other payments and benefits from Parent (or its Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar less than three times Executive's ’s base amount, then Executive shall immediately repay such excess to Parent (or its Affiliates) upon notification that an overpayment has been made. Nothing in this Section 1(e1(f) shall require Parent or Employer to be responsible for, or have any liability or obligation with respect to, Executive's ’s excise tax liabilities under Section 4999 of the Code.

Certain Excise Taxes. If Executive Notwithstanding anything to the contrary in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the Code), FORM A and the separation payments and benefits provided for in this AgreementSection 7.1, together with any other payments and benefits which such Executive Employee has the right to receive from Parent the Company or any of its Affiliatesaffiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments benefits provided for in this Agreement Section 7.1 (beginning with any benefit to be paid in cash hereunder) shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive Employee from the Parent Company and its Affiliates affiliates will be one dollar ($1.00) less than three times Executive's Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Executive Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The determination as to whether any such reduction in the amount of the payments benefits provided hereunder is necessary shall be made by Parent the Company in good faith. If a reduced cash payment is made and through error or otherwise that payment, when aggregated with other payments and benefits from Parent the Company (or its Affiliatesaffiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Executive's Employee’s base amount, then Executive Employee shall immediately repay such excess to Parent (or its Affiliates) the Company upon notification that an overpayment has been made. Nothing in this Section 1(e) 10.1 shall require Parent or Employer the Company to be responsible for, or have any liability or obligation with respect to, Executive's Employee’s excise tax liabilities under Section 4999 of the Code.