Common use of CHANGE IN CONTROL; EXCISE TAX Clause in Contracts

CHANGE IN CONTROL; EXCISE TAX. (a) Notwithstanding anything to the contrary herein, if any portion of any payment or benefit under this Agreement, or under any other agreement with the Executive or plan of the Company or any affiliate (in the aggregate, “Total Payments”) would constitute an “excess parachute payment” and would, but for this Section 11(a), result in the imposition on the Executive of an excise tax under Code Section 4999 (“Excise Tax”), then the Total Payments to be made to the Executive shall either be (i) delivered in full, or (ii) delivered in such amount so that no portion of such Total Payments would be subject to the Excise Tax, whichever of the foregoing results in the receipt by the Executive of the greatest benefit on an after-tax basis (taking into account the applicable federal, state and local income taxes and the Excise Tax). (b) Within forty (40) days following a separation of service that entitles or may entitle the Executive to the Severance Package or notice by one party to the other of its belief that there is a payment or benefit due the Executive that will result in an excess parachute payment, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income (as defined below), (ii) the amount and present value of the Total Payments, (iii) the amount and present value of any excess parachute payments determined without regard to any reduction of Total Payments pursuant to Section 11(a) and (iv) the net after-tax proceeds to the Executive, taking into account the tax imposed under Code Section 4999 if (x) the Total Payments were reduced in accordance with Section 11(a) or (y) the Total Payments were not so reduced. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel opinion determines that Section 11(a)(ii) applies, then the payments and benefits hereunder or any other payments or benefits determined by such counsel to be includable in Total Payments shall be reduced or eliminated so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. In such event, payments or benefits included in the Total Payments shall be reduced or eliminated by applying the following principles, in order: (1) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits to be received by the Executive (on the basis of the relative present value of the parachute payments). (c) For purposes of this Agreement: (A) the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Code Section 280G and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4); (B) the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Code Section 280G(d)(1); (C) for purposes of the opinion of National Tax Counsel, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Code Sections 280G(d)(3) and (4), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive; and (D) Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation, and state and local income taxes at the highest marginal rate of taxation in the state or locality of Executive’s domicile (determined in both cases in the calendar year in which the separation of service occurs or notice described in Section 11(c) is given, whichever is earlier), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes.

CHANGE IN CONTROL; EXCISE TAX. (a) Notwithstanding anything This Section 6 will apply to all Payments. Anything in this Agreement to the contrary hereinnotwithstanding, if any portion of any payment or benefit under this Agreement, or under any other agreement with the Executive or plan of the Company or any affiliate (in the aggregate, “Total Payments”) would constitute an “excess parachute payment” and would, but for this Section 11(a), result in the imposition on the Executive of an excise tax under Code Section 4999 (“Excise Tax”), then the Total Payments to event it shall be made to the Executive shall either be determined that (i) delivered in full, any Payment (or (iiany acceleration of any Payment) delivered in such amount so that no portion of such Total Payments to or for your benefit would be subject to the Excise Tax, whichever and (ii) the reduction of the foregoing results in amounts payable to you under this Agreement or otherwise to the receipt by the Executive of the greatest benefit on an Excise Limit would provide you with a greater after-tax basis amount than if such amounts were not reduced, then the amounts payable to you under this Agreement shall be reduced (taking into account but not below zero) by an amount sufficient to reduce the applicable federal, state and local income taxes and Parachute Value of the Payments to the Excise Tax)Limit. The reduction of the Parachute Value of the Payments, if applicable, shall be made by reducing the payments and benefits under the following sections of this Agreement in the following order: (i) Section 4(b)(2) hereof, (ii) Section 4(b)(3) hereof and (iii) Section 4(b)(5) hereof unless an alternative method of reduction was elected by Executive prior to the date set forth in the first paragraph of this Agreement. If the reductions described in the preceding sentence are not sufficient to reduce the Parachute Value of the Payments to the Excise Limit, further reduction of the Parachute Value of the Payments or such other payments shall be made in the manner which has the least economic cost to you. (b) Within forty (40) days following a separation of service that entitles or may entitle All determinations required to be made under this Section 6, including the Executive to the Severance Package or notice by one party to the other of its belief that there Excise Limit, whether and when an Excise Tax is a payment or benefit due the Executive that will result in an excess parachute paymentdue, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of Excise Tax and the Base Period Income (as defined below)assumptions to be utilized in arriving at such determinations, (ii) shall be made by the amount and present value of the Total Payments, (iii) the amount and present value of any excess parachute payments determined without regard to any reduction of Total Payments pursuant to Section 11(a) and (iv) the net after-tax proceeds to the Executive, taking into account the tax imposed under Code Section 4999 if (x) the Total Payments were reduced in accordance with Section 11(a) or (y) the Total Payments were not so reducedAccounting Firm. The opinion of National Tax Counsel Accounting Firm shall be addressed provide detailed supporting calculations both to the Company and you within 15 business days of the Executive receipt of notice from you that there has been a Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, you may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executiveyou. If such National Tax Counsel opinion the Accounting Firm determines that Section 11(a)(ii) appliesno Excise Tax is payable by Executive, then it shall furnish Executive with a written opinion to such effect, and to the payments and benefits hereunder effect that failure to report the Excise Tax, if any, on Executive’s applicable federal income tax return will not result in the imposition of a negligence or any other payments or benefits determined by such counsel to be includable in Total similar penalty. In the event the Accounting Firm determines that the Parachute Value of the Payments shall be reduced or eliminated so that under to the bases of calculations set forth in Excise Limit, it shall furnish Executive with a written opinion to such opinion there will be no excess parachute paymenteffect. In such event, payments or benefits included in The determination by the Total Payments Accounting Firm shall be reduced or eliminated by applying binding upon the following principles, in order: (1) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; Company and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits to be received by the Executive (on the basis of the relative present value of the parachute paymentsexcept as provided in paragraph (c) below). (c) For purposes If it is established pursuant to a final determination of a court or the Internal Revenue Service (the “IRS”) proceeding, which has been finally and conclusively resolved, that Payments have been made to, or provided for the benefit of, Executive by the Company, which are in excess of the limitations provided in this Agreement: Section 6 (A) the terms hereinafter referred to as an “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Code Section 280G and Excess Payment”), such “parachute payments” Excess Payment shall be valued 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 Company on demand, together with interest on the Excess Payment at the applicable federal rate (as provided thereindefined in Section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. Present value for purposes As a result of the uncertainty in the application of Section 4999 of the Code at the time of the determination, it is possible that Payments which will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made under this Agreement Section 6. In the event that it is determined (i) by the Accounting Firm, the Company (which shall be calculated in accordance include the position taken by the Company, or together with Code Section 280G(d)(4); its consolidated group, on its federal income tax return) or the IRS or (Bii) pursuant to a determination by a court, that an Underpayment has occurred, the term “Base Period Income” means Company shall pay an amount equal to such Underpayment to Executive within ten (10) days of such determination together with interest on such amount at the Executive’s “annualized includible compensation for applicable federal rate from the base period” as defined in Code Section 280G(d)(1); (C) for purposes date such amount would have been paid to Executive until the date of payment. Executive shall cooperate, to the opinion of National Tax Counsel, the value of any noncash benefits extent his or any deferred payment or benefit shall be determined her expenses are reimbursed by the Company’s independent auditors , with any reasonable requests by the Company in accordance connection with any contests or disputes with the principles of Code Sections 280G(d)(3) and (4), which IRS in connection with the Excise Tax or the determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive; and (D) Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation, and state and local income taxes at the highest marginal rate of taxation in the state or locality of Executive’s domicile (determined in both cases in the calendar year in which the separation of service occurs or notice described in Section 11(c) is given, whichever is earlier), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxesExcess Payment.

CHANGE IN CONTROL; EXCISE TAX. (a) Notwithstanding anything to the contrary herein, if any portion of any payment or benefit under this Agreement, or under any other agreement with the Executive or plan of the Company or any affiliate (in the aggregate, “Total Payments”) would constitute an “excess parachute payment” and would, but for this Section 11(a), result in the imposition on the Executive of an excise tax under Code Section 4999 (“Excise Tax”), then the Total Payments to be made to the Executive shall either be (i) delivered in full, or (ii) delivered in such amount so that no portion of such Total Payments would be subject to the Excise Tax, whichever of the foregoing results in the receipt by the Executive of the greatest benefit on an after-tax basis (taking into account the applicable federal, state and local income taxes and the Excise Tax). (b) Within forty (40) days following a separation of service that entitles or may entitle the Executive to the Severance Package or notice by one party to the other of its belief that there is a payment or benefit due the Executive that will result in an excess parachute payment, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income (as defined below), (ii) the amount and present value of the Total Payments, (iii) the amount and present value of any excess parachute payments determined without regard to any reduction of Total Payments pursuant to Section 11(a) and (iv) the net after-tax proceeds to the Executive, taking into account the tax imposed under Code Section 4999 if (x) the Total Payments were reduced in accordance with Section 11(a) or (y) the Total Payments were not so reduced. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel opinion determines that Section 11(a)(ii) applies, then the payments and benefits hereunder or any other payments or benefits determined by such counsel to be includable in Total Payments shall be reduced or eliminated so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. In such event, payments or benefits included in the Total Payments shall be reduced or eliminated by applying the following principles, in order:opinion (1) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits to be received by the Executive (on the basis of the relative present value of the parachute payments). (c) For purposes of this Agreement: (A) the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Code Section 280G and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Code Section 280G(d)(4); (B) the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Code Section 280G(d)(1); (C) for purposes of the opinion of National Tax Counsel, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Code Sections 280G(d)(3) and (4), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive; and (D) Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation, and state and local income taxes at the highest marginal rate of taxation in the state or locality of Executive’s domicile (determined in both cases in the calendar year in which the separation of service occurs or notice described in Section 11(c) is given, whichever is earlier), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes.

CHANGE IN CONTROL; EXCISE TAX. (a) Notwithstanding anything This Section 7 will apply to all Payments. Anything in this Agreement to the contrary hereinnotwithstanding, if any portion of any payment or benefit under this Agreement, or under any other agreement with the Executive or plan of the Company or any affiliate (in the aggregate, “Total Payments”) would constitute an “excess parachute payment” and would, but for this Section 11(a), result in the imposition on the Executive of an excise tax under Code Section 4999 (“Excise Tax”), then the Total Payments to event it shall be made to the Executive shall either be determined that (i) delivered in full, any Payment (or (iiany acceleration of any Payment) delivered in such amount so that no portion of such Total Payments to or for your benefit would be subject to the Excise Tax, whichever and (ii) the reduction of the foregoing results in amounts payable to you under this Agreement or otherwise to the receipt by the Executive of the greatest benefit on an Excise Limit would provide you with a greater after-tax basis amount than if such amounts were not reduced, then the amounts payable to you under this Agreement shall be reduced (taking into account but not below zero) by an amount sufficient to reduce the applicable federal, state and local income taxes and Parachute Value of the Payments to the Excise Tax)Limit. The reduction of the Parachute Value of the Payments, if applicable, shall be made by reducing the payments and benefits under the following sections of this Agreement in the following order: (i) Section 5(b)(2) hereof, (ii) Section 5(b)(3) hereof and (iii) Section 5(b)(5) hereof unless an alternative method of reduction was elected by Executive prior to the date set forth in the first paragraph of this Agreement. If the reductions described in the preceding sentence are not sufficient to reduce the Parachute Value of the Payments to the Excise Limit, further reduction of the Parachute Value of the Payments or such other payments shall be made in the manner which has the least economic cost to you. (b) Within forty (40) days following a separation of service that entitles or may entitle All determinations required to be made under this Section 7, including the Executive to the Severance Package or notice by one party to the other of its belief that there Excise Limit, whether and when an Excise Tax is a payment or benefit due the Executive that will result in an excess parachute paymentdue, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of Excise Tax and the Base Period Income (as defined below)assumptions to be utilized in arriving at such determinations, (ii) shall be made by the amount and present value of the Total Payments, (iii) the amount and present value of any excess parachute payments determined without regard to any reduction of Total Payments pursuant to Section 11(a) and (iv) the net after-tax proceeds to the Executive, taking into account the tax imposed under Code Section 4999 if (x) the Total Payments were reduced in accordance with Section 11(a) or (y) the Total Payments were not so reducedAccounting Firm. The opinion of National Tax Counsel Accounting Firm shall be addressed provide detailed supporting calculations both to the Company and you within 15 business days of the Executive receipt of notice from you that there has been a Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, you may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executiveyou. If such National Tax Counsel opinion the Accounting Firm determines that Section 11(a)(ii) appliesno Excise Tax is payable by Executive, then it shall furnish Executive with a written opinion to such effect, and to the payments and benefits hereunder effect that failure to report the Excise Tax, if any, on Executive’s applicable federal income tax return will not result in the imposition of a negligence or any other payments or benefits determined by such counsel to be includable in Total similar penalty. In the event the Accounting Firm determines that the Parachute Value of the Payments shall be reduced or eliminated so that under to the bases of calculations set forth in Excise Limit, it shall furnish Executive with a written opinion to such opinion there will be no excess parachute paymenteffect. In such event, payments or benefits included in The determination by the Total Payments Accounting Firm shall be reduced or eliminated by applying binding upon the following principles, in order: (1) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; Company and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits to be received by the Executive (on the basis of the relative present value of the parachute paymentsexcept as provided in paragraph (c) below). (c) For purposes If it is established pursuant to a final determination of a court or the Internal Revenue Service (the “IRS”) proceeding, which has been finally and conclusively resolved, that Payments have been made to, or provided for the benefit of, Executive by the Company, which are in excess of the limitations provided in this Agreement: Section 7 (A) the terms hereinafter referred to as an “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Code Section 280G and Excess Payment”), such “parachute payments” Excess Payment shall be valued 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 Company on demand, together with interest on the Excess Payment at the applicable federal rate (as provided thereindefined in Section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. Present value for purposes As a result of the uncertainty in the application of Section 4999 of the Code at the time of the determination, it is possible that Payments which will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made under this Agreement Section 7. In the event that it is determined (i) by the Accounting Firm, the Company (which shall be calculated in accordance include the position taken by the Company, or together with Code Section 280G(d)(4); its consolidated group, on its federal income tax return) or the IRS or (Bii) pursuant to a determination by a court, that an Underpayment has occurred, the term “Base Period Income” means Company shall pay an amount equal to such Underpayment to Executive within ten (10) days of such determination together with interest on such amount at the Executive’s “annualized includible compensation for applicable federal rate from the base period” as defined in Code Section 280G(d)(1); (C) for purposes date such amount would have been paid to Executive until the date of payment. Executive shall cooperate, to the opinion of National Tax Counsel, the value of any noncash benefits extent his or any deferred payment or benefit shall be determined her expenses are reimbursed by the Company’s independent auditors , with any reasonable requests by the Company in accordance connection with any contests or disputes with the principles of Code Sections 280G(d)(3) and (4), which IRS in connection with the Excise Tax or the determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive; and (D) Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation, and state and local income taxes at the highest marginal rate of taxation in the state or locality of Executive’s domicile (determined in both cases in the calendar year in which the separation of service occurs or notice described in Section 11(c) is given, whichever is earlier), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxesExcess Payment.