Section 280G Cutback. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company or its successor to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “Excise Tax”), then if the aggregate of all Payments that would be subject to the Excise Tax, reduced by all Federal, state and local taxes applicable thereto, including the Excise Tax is less than the amount Executive would receive, after all such applicable taxes, if Executive received Payments equal to an amount which is $1.00 less than three times the Executive's “base amount”, as defined in and determined under Section 280G of the Code, then, such Payments shall be reduced or eliminated to the extent necessary so that the aggregate Payments received by Executive will not be subject to the Excise Tax. If a reduction in the Payments is necessary, reduction shall occur in the following order: first, a reduction of cash payments not attributable to equity awards which vest in an accelerated basis; second, a reduction in any other cash amount payable to Executive; third, the reduction of any employee benefit valued as a “parachute payment” (as defined in Section 280G of the Code); and fourth, the cancellation of accelerated vesting of stock awards. If acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Executive's stock awards. All determinations made under this Section 3.3 and the assumptions to be utilized in arriving at such determinations shall be made by a registered public accounting firm designated by Executive and reasonably acceptable to the Company (the “Accounting Firm”). All fees and expenses of the Accounting Firm shall be borne solely by the Company or its successor.
Section 280G Cutback. The Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Code section 4999. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or in connection with the Executive’s termination of employment or contingent upon a Change in Control pursuant to any plan or arrangement or other agreement with the Company or any affiliate (collectively, the “Payments”) would be subject to the excise tax imposed by Code section 4999, as determined by the Company, then the Payments shall be reduced to the extent necessary to prevent any portion of the Payments from becoming nondeductible by the Company under Code section 280G or subject to the excise tax imposed under Code section 4999, but only if, by reason of that reduction, the net after-tax benefit received by the Executive exceeds the net after-tax benefit the Executive would receive if no reduction was made. For this purpose, “net after-tax benefit” means (i) the total of all Payments that would constitute “excess parachute payments” within the meaning of Code section 280G, less (ii) the amount of all federal, state, and local income taxes payable with respect to the Payments calculated at the maximum marginal income tax rate for each year in which the Payments shall be paid to the Executive (based on the rate in effect for that year as set forth in the Code as in effect at the time of the first payment of the Payments), less (iii) the amount of excise taxes imposed on the Payments described in clause (i) above by Code section 4999. If, pursuant to this Section 9(g), Payments are to be reduced, the Company shall determine which Payments shall be reduced in a manner so as to avoid the imposition of additional taxes under Code section 409A.
Section 280G Cutback. Notwithstanding anything in this Agreement to the contrary, if any payments or benefits (including without limitation, any accelerated vesting of equity awards) Participant would receive pursuant to this Agreement or otherwise would constitute a “parachute payment” within the meaning of Section 280G of the Code (each, a “Payment” and collectively, the “Payments”), the Payments shall be reduced by the minimum possible amount necessary such that no amounts payable to the Participant shall constitute a “parachute payment.” All determinations required to be made under this Section 6(j), including whether any Payment is a “parachute payment” and whether and to what extent a reduction in any Payments is required and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm designated by the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Participant. Any determination by the Accounting Firm shall be binding upon the Participant and the Company. If a reduction in any Payments is required under this Section 6(j), the reduction will occur in the following order: first, by reduction of cash payments; second, by cancellation of accelerated vesting of equity awards; and third, by reduction of other benefits payable to Participant, in each case, in reverse chronological order, beginning with payments or benefits that are to be paid latest.
Section 280G Cutback. (a) Anything in this Agreement to the contrary notwithstanding, any Payments made pursuant to this Agreement shall be adjusted so that the aggregate present value of all “parachute payments” (as defined in Section 280G(b)(2) of the Code) to which you are entitled is less than 300% of your “annualized includible compensation for the base period” (as defined in Section 280G(d) of the Code). The determination as to whether there is any adjustment (and the extent thereof) in any Payments made pursuant to this Agreement due to this paragraph shall be made in writing within five (5) days prior to the receipt by you of a payment pursuant to, and in accordance with, Section 2 (the “Calculation Deadline”); provided, that such determination shall be made by the Company’s nationally recognized independent accountants, compensation consultants or legal counsel (“Independent Advisor”) and shall be final and binding on you and the Company. The Company shall furnish said Independent Advisor with all data required to make said determination within thirty (30) days prior to the Calculation Deadline. Notwithstanding the foregoing, the parties hereto agree that the Independent Advisor shall determine the “base amount” (as defined in Section 280G(b)(3) of the Code) applicable to the Payments as soon as practicable following January 31, 2010; provided, that (i) you and Chattem shall furnish to the Independent Advisor such information and documentation as may reasonably be requested by the Independent Advisor and (ii) a copy of such determination shall be provided to you and you shall have a reasonable opportunity to reasonably review and comment on such determination.
Section 280G Cutback. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement would be an “excess parachute payment” (within the meaning of Section 280G of the Code, or any successor provision thereto) but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an excess parachute payment. Whether requested by you or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence will be made at the expense of the Company by the Company’s independent accountants. The fact that your right to payments or benefits may be reduced by reason of the limitations contained in this Section 9 will not of itself limit or otherwise affect any rights you have other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement is required to be reduced pursuant to this Section 9, the Company will reduce your payments and/or benefits, to the extent required, in the following order: (i) the lump sum payment described in Section 1, (ii) the outplacement benefit described in Section 1, (iii) the health continuation benefits set forth in Section 1, and (iv) the prorated bonus set forth in Section 1.
Section 280G Cutback. Notwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement, together with any payments or benefits payable or to be provided under any other plan, program, arrangement or agreement maintained by the Company or an Affiliate, would be deemed or considered to be an “excess parachute payment” (within the meaning of section 280G of the Code, or any successor provision thereto) but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes or would constitute an excess parachute payment. Whether requested by the Employee or the Company, the determination of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence (and the assumptions utilized to make such determination) will be made at the expense of the Company by the Company’s independent accountants, whose judgment shall be conclusive, final and binding. In the event that any payment or benefit intended to be provided under this Agreement is required to be reduced pursuant to this Section 6(p), the Company will determine the order in which such reduction in payments and/or benefits will be made.
Section 280G Cutback. (a) If it is determined that the aggregate of all Payments (as defined below) that would be subject to the Excise Tax (as defined below), reduced by all Federal, state and local taxes applicable thereto, including the Excise Tax, is less than the amount Executive would receive, after all such applicable taxes, if Executive received Payments equal to an amount which is $1.00 less than three times Executive’s “base amount”, as defined in and determined under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then, in order to maximize Executive’s net after-tax return on the Payments, such Payments shall be automatically reduced or eliminated to the extent necessary so that the aggregate Payments received by Executive will not be subject to the Excise Tax. If a reduction in the Payments is necessary, reduction shall occur in the following order: first by reducing or eliminating the portion of the Payments which are not payable in cash and are not attributable to equity awards, second by reducing or eliminating cash payments, third by reducing or eliminating the portion of the Payments which are not payable in cash and are attributable to equity awards (other than awards described in the following clause) and finally by reducing or eliminating the portion of the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time.
Section 280G Cutback. Notwithstanding any other provisions of this Agreement to the contrary, in the event that any payment, benefit or right paid or distributed, or treated as paid or distributed, to or for the benefit of the Employee in connection with a Change in Control or the Employee’s Termination (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Corporation, any person whose actions result in a Change in Control or any person affiliated with the Corporation or such person) (each such payment, benefit and right, including any payment under Section 4.1, being hereinafter referred to as a “Payment” and, collectively, “Payments”) is subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Corporation shall reduce the payments and benefits due under this Agreement so that the Employee’s total Payments will be $1.00 less than the amount that would trigger the Excise Tax. If the reduction under this Section 4.2 applies, payments that are not subject to Section 409A of the Code shall be reduced first. The value of all payments, benefits and rights due under this Agreement will be established by the Corporation’s independent auditors applying principles, assumptions and procedures consistent with Section 280G of the Code.
Section 280G Cutback. (a) Anything in this Agreement to the contrary notwithstanding, in the event that the Accounting Firm shall determine that receipt of all Payments would subject You to tax under Section 4999 of the Code, the Accounting Firm shall determine whether some amount of Agreement Payments meets the definition of “Reduced Amount.” If the Accounting Firm determines that there is a Reduced Amount, then the aggregate Agreement Payments shall be reduced to such Reduced Amount.
Section 280G Cutback. Except as provided in Section 5(c) hereof, notwithstanding any other provision of this Agreement to the contrary, in the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any "person" (as defined in Section 13(d) of the Act) whose actions result in a Change in Control or any person affiliated with the Company or such person) (all such payments and benefits, being hereinafter called "Total Payments") would not be deductible (in whole or part) by the Company, an affiliate or person making such payment or providing such benefit as a result of section 280G of the Internal Revenue Code of 1986, as amended ("the Code"), then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement), (A) the cash portion of the Total Payments provided in this Section 5 shall first be reduced (if necessary, to zero), and (B) all other non-cash Total Payments under this Section 5 shall next be reduced (if necessary, to zero). For purposes of this limitation, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the Date of Termination shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) those Total Payments provided under this Section 5 shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred to in clause (ii); and (iv) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditor...
