Delta Airlines 2009 Annual Report Download - page 133

below) of aggregate Payments if Participant's Total Payments were reduced to the Reduced Amount. If instead the Accounting Firm determines that
Participant would not have a greater Net After-Tax Receipt of aggregate payments if Participant's Total Payments were reduced to the Reduced Amount,
Participant shall receive all Total Payments to which Participant is entitled. Any valuation of any post change reasonable compensation shall be determined
by the Accounting Firm (or, if the Accounting Firm is not able to make such determination, an independent third-party valuation specialist, selected by
Delta), and Delta shall cooperate in good faith in connection with any such valuation process.
(ii) If the Accounting Firm determines that aggregate Total Payments should be reduced to the Reduced Amount, Delta shall promptly give Participant
notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm (or, with respect to the valuation of the
post change reasonable compensation, or to the extent applicable, the independent third-party valuation specialist) under this section shall be binding upon
Delta and Participant and shall be made within thirty (30) days after a termination of Participant's employment. The reduction of the Total Payments to the
Reduced Amount, if applicable, shall be made by reducing the Total Payments under the following types of compensation or value in the following order:
(i) Stock Options, (ii) Restricted Stock, (iii) Performance Shares, and (iv) Cash. All fees and expenses of the Accounting Firm and the independent third-
party valuation specialist (if any) shall be borne solely by Delta.
(iii) As a result of the uncertainty in the application of Sections 280G and 4999 of the Code at the time of the initial determination by the Accounting
Firm hereunder, it is possible that amounts will have been paid or distributed by Delta to or for the benefit of Participant pursuant to the 2009 Plan which
should not have been so paid or distributed ("Overpayment") or that additional amounts which will have not been paid or distributed by Delta to or for the
benefit of Participant pursuant to the 2009 Plan could have been so paid or distributed ("Underpayment"), in each case, consistent with the calculation of
the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against
either Delta or Participant which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made,
Participant shall pay any such Overpayment to Delta together with at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided,
however, that no amount shall be payable by Participant to Delta if and to the extent such payment would not either reduce the amount on which
Participant is subject to tax under Sections 1, 3101 and 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based
upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by
Delta to or for the benefit of Participant together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. In all events,
any Overpayment or Underpayment shall be paid no later than December 31 of the year after the year in which the Overpayment or Underpayment is
determined to exist.
(iv) For purposes hereof, the following terms have the meanings set forth below:
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