Code Section 4999. (i) If, by reason of, or in connection with, any transaction that occurs after the Original Effective Date, Executive would be subject to the imposition of the excise tax imposed by Code Section 4999 related to Executive’s employment with the Company, whether before or after termination of Executive’s employment, but the imposition of such tax could be avoided by approval of shareholders described in Code Section 280G(b)(5)(B), then Executive may ask the Company to seek such approval, in which case the Company will use its reasonable best efforts to cause such approval to be obtained and Executive will cooperate and execute such waivers as may be necessary so that such approval avoids imposition of any excise tax under Code Section 4999. If Executive fails to request that the Company seek such approval, or if Executive does request that the Company seek such approval, but fails to cooperate and execute such waivers as may be necessary in the approval process, Section 7(g)(ii) shall not apply and Executive shall not be entitled to any gross-up payment for any resulting tax under Code Section 4999. If such approval, even if sought and obtained, would not avoid imposition of the excise tax imposed under Code Section 4999, then the provisions of Section 7(g)(ii) shall apply without any precedent obligation of Executive to seek such approval.
Code Section 4999. If, as a result of payments provided for under or pursuant to this Agreement together with all other payments in the nature of compensation provided to or for the benefit of Executive, any state, local or federal taxing authority imposes any taxes on Executive that would not be imposed on such payments but for the occurrence of a Change of Control, including any excise tax under Section 4999 of the Code, then, in addition to any other benefits provided under or pursuant to this Agreement or otherwise, the Company (including any successor to or assignee of the Company) shall pay to Executive at the time any such payments are made under or pursuant to this Agreement or the other agreements, an amount equal to the amount of any such taxes imposed or to be imposed on Executive (the amount of any such payment, the "Tax Reimbursement"). In addition, the Company (including any successor to or assignee of the Company) shall "gross up" such Tax Reimbursement by paying to Executive at the same time an additional amount equal to the aggregate amount of any additional taxes (whether income taxes, excise taxes, special taxes, employment taxes or otherwise) that are or will be payable by Executive as a result of the Tax Reimbursement being paid or payable to Executive and/or as a result of the additional amounts paid or payable to Executive pursuant to this sentence, such that after payment of such additional taxes Executive shall have been paid on a net after-tax basis an amount equal to the Tax Reimbursement. The amount of any Tax Reimbursement and of any such gross-up amounts shall be determined by the Company's independent auditing firm, whose determination, absent manifest error, shall be treated as conclusive and binding absent a binding determination by a governmental taxing authority that a greater amount of taxes is payable by Executive.
Code Section 4999. If any payments or benefits to be made to or for the benefit of the Executive under this Agreement or under any plan or arrangement maintained by the Company or its affiliated companies are subject to the excise tax under Code Section 4999, such payments or benefits nonetheless shall be subject to the provisions set forth in Exhibit B attached to this Agreement and made part hereof as if set forth at length in the body of the Agreement.
Code Section 4999. To the extent that the amount of any payments under Sections 9 or 10 or any other payment herein in the nature of compensation (within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), to or for the benefit of Executive, whether paid or payable pursuant to the Agreement or otherwise by the Company (the “Payments”), are subject to the excise tax provisions of Section 4999 or the Code, the Company shall pay a tax equalization payment (the “Tax Equalization Payment”) in accordance with this Section 28, in addition to such payments. The Tax Equalization Payment shall be in an amount that when added to the Payments will place Executive in the same after-tax (including, without limitation, federal, state and local income and employment taxes, excise taxes, and any interest and penalties imposed with respect thereto) position as if the excise tax penalty of Section 4999 of the Code, did not apply to any of the Payments. The amount of this Tax Equalization Payment shall be determined by the Company’s independent accountants and shall be remitted to the applicable United States federal, state and local tax jurisdictions. All fees of the accounting firm for such determination shall be borne by the Company. Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Tax Equalization Payment (or an additional Tax Equalization Payment). Executive shall cooperate with the Company to determine whether, and how, to contest such claim. The Company shall bear and pay directly all costs and expenses (including additional taxes, interest and penalties) incurred in connection with such claim and/or contest and shall indemnify and hold Executive harmless, on an after-tax basis, for excise tax or income tax (including interest and penalties with respect thereto) imposed as a result of such claim and/or contest and payment for costs and expenses. In accordance with Treasury Regulation Section 1.409A-3, Tax Equalization Payment(s) shall be made to Executive no later than the end of the calendar year following the calendar year in which the amount(s) of the applicable taxes are remitted to the applicable taxing authorities described above.
Code Section 4999. (i) If any Payments (as defined in Paragraph 5(h)(ii) to be made to or for the benefit of the Executive under this Agreement or under any plan or arrangement maintained by the Company or its affiliated companies are subject to the excise tax (the “Excise Tax”) under section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then such Payments shall be reduced by the smallest amount necessary in order for no portion of the Executive’s total Payments to be subject to the Excise Tax.
Code Section 4999. (a) In the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), the Executive would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to have the Payment either (A) paid or delivered in full, or (B) capped at the amount that is $1 less than two times the Executive’s “base amount,” whichever of the foregoing results in the receipt by the Executive of the greatest benefit on an after-tax basis (taking into account applicable taxes, including federal, state and local income taxes and the Excise Tax). Any reduction of the Payment required by this subsection shall be carried out by applying the following principles, in order: (1) the payment or
Code Section 4999. (a) In the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), the Executive would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to have the Payment either (A) paid or delivered in full, or (B) capped at the amount that is $1 less than two times the Executive’s “base amount,” whichever of the foregoing results in the receipt by the Executive of the greatest benefit on an after-tax basis (taking into account applicable taxes, including federal, state and local income taxes and the Excise Tax). Any reduction of the Payment required by this subsection shall be carried out 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 included in the Payment (on the basis of the relative present value of the parachute payments).
Code Section 4999. (a) In the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), the Executive would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to have the Payment either (A) paid or delivered in full, or (B) capped at the amount that is $1 less than two times the Executive’s “base amount,” whichever of the foregoing results in the receipt by the Executive of the
Code Section 4999. (a) Notwithstanding any other provision of this Agreement, in the event it shall be determined that any payment or distribution by the Company or its affiliates to or for the benefit of the 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 or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to elect to reduce the Payment by an amount that would reduce or eliminate the Excise Tax. The Executive shall, in his sole discretion, determine the amount of such reduced Payment and the Payment that is to be reduced; provided, however, that no Payment may reduced in any manner that would result in a violation of Section 409A. Any such election and determinations of reduced Payments by the Executive shall be irrevocable and shall be communicated in writing to the Company no later than thirty (30) days after the Accounting Firm notifies the Executive that an Excise Tax will be due and payable upon a Payment absent an election by the Executive.
Code Section 4999. (a) Notwithstanding any other provision in this Agreement to the contrary, and except as set forth below, in the event the Company determines that any payment or distribution by the Company, or by any affiliate of the Company, to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) would constitute parachute payments within the meaning of Section 280G of the Code (a “Payment”) and would be subject to the excise tax imposed by Code Section 4999 or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (the “Excise Tax”), then the Payments shall be reduced (but not below zero) to the minimum extent necessary to ensure that no portion of the Payment is subject to the Excise Tax (the “Cutback”); provided that, if Executive, solely in his discretion, determines that the economic value derived by him after payment of the tax contemplated in Code Section 4999 results in a better economic outcome to him than would be achieved by implementing the Cutback (taking into account the tax paid under Section 4999), than the Cutback shall not occur and the Executive shall be paid all amounts owed to him under this Agreement or any other agreement between him and the Company).
