Common use of Limitations on Compensation Clause in Contracts

Limitations on Compensation. (i) In the event that the benefits payable to the Participant under Section 3.4(c) ("Severance Benefits"), or any other payments or benefits received or to be received by the Participant from the Company (whether payable pursuant to the terms of this Agreement, any other plan, agreement or arrangement with the Company or any corporation ("Affiliate") affiliated with the Company within the meaning of Section 1504 of the Internal Revenue Code of 1954, as amended (the "Code"), in the opinion of tax counsel selected by the Company's independent auditors, constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and the present value of such "parachute payments" equals or exceeds three (3) times the average of the annual compensation payable to the Participant by the Company (or an Affiliate) and includable in the Participant's gross income for federal income tax purposes for the five (5) calendar years preceding the year in which a change in ownership or control of the Company occurred ("Base Amount"), such Severance Benefits shall be reduced to an amount the present value of which (when combined with the present value of any other payments or benefits otherwise received or to be received by the Participant from the Company (or an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the Base Amount, notwithstanding any other provision to the contrary in this Agreement. The Severance Benefits shall not be reduced if (A) the Participant shall have effectively waived his receipt or enjoyment of any such payment or benefit which triggered the applicability of this Section 3.4(d), or (B) in the opinion of such tax counsel, the Severance Benefits (in its full amount or as partially reduced, as the case may be) plus all other payments or benefits which constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Code are reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4) of the Code, and such payments are deductible by the Company. The Base Amount shall include every type and form of compensation includable in the Participant's gross income in respect of his employment by the Company (or an Affiliate), except to the extent otherwise provided in temporary or final regulations promulgated under Section 280G(b) of the Code. For purposes of this Section 3.4(d), a "change in ownership or control" shall have the meaning set forth in Section 280G(b) of the Code and any temporary or final regulations promulgated thereunder. The present value of any non-cash benefits or any deferred cash payment shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(b)(3) and (4) of the Code. (ii) The Participant shall have the right to request that the Company obtain a ruling from the Internal Revenue Service ("Service") as to whether any or all payments or benefits determined by such tax counsel are, in the view of the Service, "parachute payments" under Section 280G. If a ruling is sought pursuant to the Participant's request, no Severance Benefits payable under this Agreement shall be made to the Participant until after fifteen (15) days from the date of such ruling. For purposes of this Subsection 3.4(d)(ii), the Participant and the Company agree to be bound by the payments under Section 280G. If the Service declines, for any reason, to provide the ruling requested, the tax counsel's opinion provided under Subsection 3.4(d)(i) with respect to what payments or benefits constitute "parachute payments" shall control, and the period during which the Severance Benefits may be deferred shall be extended to a date fifteen (15) days from the date of the Service's notice indicating that no ruling would be forthcoming. (iii) In the event that Section 280G, or any successor statute, is repealed, this Section 3.4(d) shall cease to be effective on the effective date of such repeal. The parties to this Agreement recognize that final Treasury Regulations under Section 280G of the Code may affect the amounts that may be paid under this Agreement and agree that, upon issuance of such final Regulations, this Agreement may be modified as in good faith deemed necessary in light of the provisions of such Regulations to achieve the purposes of this Agreement, and that consent to such modifications shall not be unreasonably withheld.