Seagate 2012 Annual Report Download - page 153

subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “ Excise Tax ”), then the Eligible
Executive’s payments hereunder shall be either (a) provided to the Eligible Executive in full, or (b) provided to the Eligible Executive as to such
lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking
into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in
the receipt by the Eligible Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such
benefits may be taxable under the Excise Tax. Unless the Company and the Eligible Executive otherwise agree in writing, any determination
required under this Section 8 shall be made in writing in good faith by a recognized accounting firm selected by the Company (the “
Accountants ”). Any reduction in payments or benefits hereunder shall occur in the following order: (i) any cash severance, (ii) any other cash
amount payable to the Eligible Executive, (iii) any benefit valued as a “parachute payment,” and (iv) the acceleration of vesting of any equity-
based awards. For purposes of making the calculations required by this Section 8, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code and
other applicable legal authority. The Company and the applicable Eligible Executive shall furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to make a determination under this Section 8. The Company (or the Applicable
Subsidiary) shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 8.
(b)
If, notwithstanding any reduction described in Section 8(a), the IRS determines that an Eligible Executive is liable for the
Excise Tax as a result of the receipt of any Payments pursuant to this Plan, then the Eligible Executive shall be obligated to pay back to the
Company or the Applicable Subsidiary, within thirty (30) days after a final IRS determination or in the event that the Eligible Executive
challenges the final IRS determination, a final judicial determination, a portion of the Payments equal to the “ Repayment Amount .” The
Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to the Company or the Applicable Subsidiary so
that the Eligible Executive’s net after-tax proceeds with respect to the Payments (after taking into account the payment of the Excise Tax and all
other applicable taxes imposed on such benefits) shall be maximized. The Repayment Amount shall be zero if a Repayment Amount of more
than zero would not result in the Eligible Executive’s net after-tax proceeds with respect to the Payments being maximized. If the Excise Tax is
not eliminated pursuant to this Section 8(b), the Eligible Executive shall pay the Excise Tax.
(c)
Notwithstanding any other provision of this Section 8, if (i) there is a reduction in the Payments to an Eligible Executive as
described in this Section 8, (ii) the IRS later determines that the Eligible Executive is liable for the Excise Tax, the payment of which would
result in the maximization of the Eligible Executive’s net after-tax proceeds (calculated as if the Eligible Executive’s benefits had not previously
been reduced), and (iii) the Eligible Executive pays the
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