Common use of Excise Tax Limitation Clause in Contracts

Excise Tax Limitation. Notwithstanding Section 2.1 of this Agreement, in the event that any Payment (as hereinafter defined) would be subject in whole or in part to the excise tax (the "Excise Tax") under Section 4999 of the Internal Revenue Code (the "Code"), then the severance payments payable under Section 2.1 of this Agreement shall be reduced to the extent, but only to the extent, necessary so that no portion of any Payment is subject to the Excise Tax (the "Severance Reduction"). However, no Severance Reduction shall be made unless the net amount of the Total Payments (as hereinafter defined) after such Severance Reduction and after deduction of the net amount of federal, state and local income taxes on such reduced Total Payments would be greater than the net amount of the Total Payments without the Severance Reduction but after deduction of the Excise Tax and the net amount of federal, state and local income taxes on such unreduced Total Payments. The determination as to whether a Severance Reduction is to be made and, if so, the amount of any such reduction shall be made by the firm of certified public accountants that had been acting as the Company's auditors prior to the Change in Control or by such other firm of certified public accountants, benefits consulting firm or legal counsel as the Board may designate for such purpose, with the approval of the Executive, prior to the Change in Control. The Company shall provide the Executive with the auditor's calculations of the amounts referred to in this Section 2.6 and such supporting materials as are reasonably necessary for the Executive to evaluate the Company's calculation.