Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc., exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above. (b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 4 contracts
Samples: Employment Agreement (Barnes & Noble Education, Inc.), Employment Agreement (Barnes & Noble Education, Inc.), Employment Agreement (Barnes & Noble Education, Inc.)
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) term of this Agreement there is a Change of Control (as defined below) and (iii) your employment is terminated by the Company without Cause for any reason (other than for Cause) or (ii) you voluntarily terminate your employment for Good ReasonCause, in either case, case within the greater of two years following the Change of Control or the remainder remaining term of the Initial Term or any Renewal Termthis Agreement, as applicable, then the Company shall pay to you an amount equal to two times the following amount: (A) the sum of (ax) your then Annual Base Salaryannual salary, (by) your then most recent annual bonus, and (z) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the then aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, paragraphs 3.3 through 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions multiplied by (“Change B) the greater of Control Amount”)(x) three or (y) the number of months remaining in the term of this Agreement divided by 12; provided that the maximum amount payable pursuant to this Section 3.8 shall be the maximum amount payable to the Executive without triggering an excise tax under Section 280G of the Internal Revenue Code of 1986, as amended, or any successor provision thereto. The Change of Control Amount amount due under this Section 3.8 shall be paid to you in cash in a single one lump sum within 30 days after the date your employment terminates. In Subject to the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of limitation referred to above, to the Internal Revenue Code of 1986extent that you are not fully vested in any retirement benefits from any pension, as amended (collectively, with profit-sharing or other retirement plan or program maintained by the regulations and other guidance promulgated thereunderCompany, the “Code”; Company shall pay directly to you the difference between the amounts which would have been paid to you had you been fully vested on the date that your employment terminates and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be amounts actually paid or payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc., exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare such plans or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such paymentsprograms. The amounts payable to you under this Section 3.9(a) 3.8 shall be in lieu of any amounts payable to you under Section 3.8 3.6 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 3 contracts
Samples: Employment Agreement (Barnes & Noble Inc), Employment Agreement (Barnes & Noble Inc), Employment Agreement (Barnesandnoble Com Inc)
Change of Control Payments. (a) If at any time during In the Initial Term and any Renewal Term (i) there is event that a Change of Control (as defined below) -------------------------- occurs while you are employed by the Company pursuant to the terms of this Memorandum, and (ii) within 12 months after the occurrence of the Change of Control, your employment by the Company or the Company's successor is terminated by the Company without other than for Cause or you voluntarily terminate your employment resign for one or more events that constitute Good Reason, then you shall be entitled to receive from the Company or such successor, in either caselieu of, within and not in addition to, the greater of two years following amounts otherwise payable to you pursuant to Section 10.2(b) hereof, the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then benefits provided below:
(a) the Company shall pay to you an amount equal to two times the sum of (aA) your then Annual Base Salary, when due, through the Date of Termination at the rate in effect at the time the applicable Notice of Termination is given, (B) the unpaid portion, if any, of any annual bonus which has been earned by you but which has not been paid as of the Date of Termination, and (C) all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due, and (D) any unpaid salary with respect to any vacation days accrued but not taken as of the Date of Termination (based upon your rate of Base Salary in effect at the time the applicable Notice of Termination is given); and
(b) the average of the annual bonuses actually paid to all stock options or other equity awards held by you with respect to the three completed years preceding the date of your termination of employment and Company's Common Stock shall become fully vested; and
(c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc., exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable further salary payments to you under Section 3.8 above.for periods subsequent to the Date of Termination, the Company shall pay to you a lump sum payment in an amount which is equal to three (3) times your Average Salary and Bonus; and
(bd) As used herein, “Change of Control” you shall mean receive the occurrence of one or more benefits of the following events:Tax Protection Policy attached hereto as Appendix B, which is hereby incorporated by reference. ----------
Appears in 3 contracts
Samples: Memorandum of Understanding (Catellus Development Corp), Memorandum of Understanding (Catellus Development Corp), Memorandum of Understanding (Catellus Development Corp)
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two three times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.9(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 2 contracts
Samples: Employment Agreement (Barnes & Noble Inc), Employment Agreement (Barnes & Noble Inc)
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two three times the sum of (ax) your then Annual Base Salary, (by) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years preceding the date of your termination of employment (or such lesser number of completed fiscal years) and (cz) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 3.3 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensationcompensation within the meaning of Section 409A of the Code, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any tax-qualified or non tax-qualified pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.9(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 2 contracts
Samples: Employment Agreement (Barnes & Noble Education, Inc.), Employment Agreement (Barnes & Noble Education, Inc.)
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two three times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc., exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any pension, profit-sharing or other retirement plan or program maintained by the Company or Xxxxxx & Noble Education, Inc. and your employment terminates in the circumstances contemplated by this Section 3.9(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 2 contracts
Samples: Employment Agreement (Barnes & Noble Education, Inc.), Employment Agreement (Barnes & Noble Education, Inc.)
Change of Control Payments. (a) If at any time during In the Initial Term and any Renewal Term (i) there is event that a Change of Control (as defined below) of Catellus occurs while you are employed by the Company pursuant to the terms of this Memorandum and (ii) while the Company is a subsidiary of Catellus, and within 12 months after the occurrence of the Change of Control, your employment by the Company or the Company’s successor (or Catellus or other Catellus subsidiary if you become an employee of Catellus or another subsidiary of Catellus during such 12 month period) is terminated by the Company without Cause other than for Cause, or by transfer to Catellus or another Catellus subsidiary, or you voluntarily terminate your employment resign for one or more events that Xxx Xxxxxxxxx Memorandum of Understanding regarding Employment August 22, 2002 Page 4 of 12 constitute Good Reason, then you shall be entitled to receive from the Company or such successor, in either caselieu of, within and not in addition to, the greater of two years following amounts otherwise payable to you pursuant to Section 10.2(b) hereof, the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then benefits provided below:
(a) the Company shall pay to you an amount equal to two times the sum of (aA) your then Annual Base Salary, when due, through the Date of Termination at the rate in effect at the time the applicable Notice of Termination is given, (B) the unpaid portion, if any, of any annual bonus which has been earned by you but which has not been paid as of the Date of Termination, and (C) all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due, and (D) any unpaid salary with respect to any vacation days accrued but not taken as of the Date of Termination (based upon your rate of Base Salary in effect at the time the applicable Notice of Termination is given); and
(b) the average of the annual bonuses actually paid to all stock options or other equity awards held by you with respect to the three completed years preceding the date of your termination of employment and Catellus’ Common Stock shall become fully vested; and
(c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc., exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable further salary payments to you under Section 3.8 above.for periods subsequent to the Date of Termination, the Company shall pay to you a lump sum payment in an amount which is equal to three (3) times your Average Salary and Bonus; and
(bd) As used herein, “Change of Control” you shall mean receive the occurrence of one or more benefits of the following events:Tax Protection Policy attached hereto as Appendix B, which is hereby incorporated by reference.
Appears in 2 contracts
Samples: Memorandum of Understanding (Catellus Development Corp), Memorandum of Understanding (Catellus Subco Inc)
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two three times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid or guaranteed to you with respect to the three completed years preceding the date of your termination of employment (or such lesser number of completed years beginning on the Effective Date and ending on the date of your termination of employment) and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.9(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 1 contract
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two three times the sum of (ax) your then Annual Base Salary, (by) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years (beginning May 1, 2013) preceding the date of your termination of employment (or such lesser number of completed fiscal years beginning on May 1, 2013 and ending on the date of your termination of employment) and (cz) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). If your employment terminates on or before April 30, 2014, the amount determined under clause (ii) above for purposes of calculating the Change of Control Amount shall be U.S. $2,400,000. In addition, upon a Change in Control the Stock Grant (as defined in the Original Agreement) provided for in the Original Agreement shall vest. The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensationcompensation within the meaning of Section 409A of the Code, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any tax-qualified or non tax-qualified pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.9(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 1 contract
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicableControl, then the Company shall pay you an amount equal to two three times the sum of (ax) your then Annual Base Salary, (by) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years (beginning on May 2, 2015) preceding the date of your termination of employment (or such lesser number of completed fiscal years beginning on May 2, 2015 and ending on the date of your termination of employment) and (cz) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). If your employment terminates on or before April 30, 2016, the amount determined under clause (ii) above for purposes of calculating the Change of Control Amount shall be the 2016 Bonus. The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. Notwithstanding the foregoing, any then-unvested portion of any time-based restricted stock units that are part of a Stock Grant shall vest immediately upon the occurrence of a Change of Control. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 3.10 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensationcompensation within the meaning of Section 409A of the Code, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any tax-qualified or non tax-qualified pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.10(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a3.10(a) shall be in lieu of any amounts payable to you under Section 3.8 3.9 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 1 contract
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two three times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates; provided, however, that if such termination occurs on or prior to the Prior Agreement End Date, the Change of Control Amount shall be reduced by the Prior Agreement Severance Amount but otherwise paid in accordance with this Agreement, and the Prior Agreement Severance Amount shall be paid in 12 approximately equal monthly installments as provided in Section 3.5 of the Prior Agreement commencing on the date on which such installments would have commenced under Section 3.5 of the Prior Agreement. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx EducationXxxxx, Inc., exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any pension, profit-sharing or other retirement plan or program maintained by the Company or Xxxxxx & Noble, Inc. and your employment terminates in the circumstances contemplated by this Section 3.9(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 1 contract
Change of Control Payments. (a) If at any time If, during the Initial Term and any Renewal Term Employment Period, (i) there is a Change of Control (as defined below) occurs and (ii) your employment the Executive is terminated employed by the Company without Cause Corporation, a Subsidiary or you voluntarily terminate your employment for Good Reasonan Affiliate on the Change of Control Date, and the Executive has not delivered to the Corporation a written waiver of right under this Section 8(a) within fifteen (15) days of the occurrence of the Change of Control or within fifteen (15) days of the Corporation's written notice to the Executive of the Change of Control, the Supplemental Payment shall be paid to the Executive in either case, a lump sum within the greater of two years thirty days following the Change of Control or Date. The Corporation shall give the remainder Executive prompt written notice of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two times the sum a Change of (a) your then Annual Base Salary, Control.
(b) Anything in this Agreement to the average contrary notwithstanding, in the event it shall be determined that any payment or distribution involving the Acquisition to or for the benefit of the annual bonuses actually Executive (whether paid to you with respect or payable or distributed or distributable pursuant to the three completed years preceding terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 8) (a "Payment") would be subject to the date of your termination of employment and excise tax imposed by Section 4999 (cor any successor provision) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended amended, (collectively, with the regulations and other guidance promulgated thereunder, the “"Code”; and such payments and benefits, the “Parachute Payments”") that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy interest or arrangement of penalties are incurred by the Company or Xxxxxx & Xxxxx Education, Inc., exceeds the greatest amount of Parachute Payments that could be paid Executive with respect to you without giving rise to any liability for any such excise tax imposed by Section 4999 of (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Code (the “"Excise Tax”"), then the aggregate Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") from the Corporation in an amount such that, after payment by the Executive of Parachute Payments payable all taxes (including any interest or penalties imposed with respect to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account such taxes), including, without limitation, any Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(c) Subject to the provisions of subsection 8(c)(iii) hereof, all determinations required to be payable by you. Any reduction in Parachute Payments pursuant to made under this subsection 8(c), including whether a Gross-Up Payment is required and the immediately preceding sentence amount of such Gross-Up Payment, shall be made in by PricewaterhouseCoopers LLP or its successor firm (the following order: (1"Accounting Firm") cash payments that do not constitute deferred compensation which shall provide detailed supporting calculations both to the Corporation and the Executive within 15 business days of termination of employment under this Agreement, if applicable, or such earlier time as is requested by the meaning of Section 409A Executive or the Corporation. When calculating the amount of the CodeGross-Up Payment, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions the Executive shall be made in the manner that maximizes the present value deemed to you of all such payments. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above.pay:
(bi) As used hereinFederal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, “Change and
(ii) any applicable state and local income taxes at the highest applicable marginal rate of Control” shall mean taxation for the occurrence of one or more calendar year in which the Gross-Up Payment is to be made, net of the following events:maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Accounting Firm has performed services for the person, entity or group who cause the Change In Control, or affiliate thereof, the Executive may select an alternative accounting firm from any nationally recognized firm of certified public accountants. If the Accounting Firm
Appears in 1 contract
Samples: Employment Agreement (Dana Corp)
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company by non-renewal of this Agreement or without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicableControl, then the Company shall pay you an amount equal to two times the sum of (ax) your then Annual Base Salary, (by) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years (beginning on May 1, 2016) preceding the date of your termination of employment (or such lesser number of completed fiscal years beginning on May 1, 2016 and ending on the date of your termination of employment) and (cz) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). If your employment terminates on or before April 29, 2017, the amount determined under clause (ii) above for purposes of calculating the Change of Control Amount shall be equal to the 2017 Bonus. The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 3.10 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensationcompensation within the meaning of Section 409A of the Code, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any tax-qualified or non tax-qualified pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.10(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a3.10(a) shall be in lieu of any amounts payable to you under Section 3.8 3.9 above.
(b) As used herein, “Change of Control” shall mean have the occurrence of one or more meaning set forth in the Plan, as in effect as of the following events:date hereof. 4.
Appears in 1 contract
Samples: Employment Agreement
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of 90 days preceding or two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall (A) pay you an amount equal to two times the sum of (aI) your then Annual Base SalarySalary and (II) your target annual bonus for the year of termination (or, (b) the average of the annual bonuses actually paid to you with respect if higher, as in effect immediately prior to the three completed years preceding the date Change of your termination Control) (“Change of employment Control Amount”), and (cB) provide you the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 aboveCOBRA Benefits, less all applicable withholding and other applicable taxes and deductions deductions.
(“A) The Change of Control Amount”). The Amount and the COBRA Benefits are subject to you executing and delivering to the Company (and not revoking) the Release within 60 days following your termination date, (B) the Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminatesterminates (or, if later, when the Release becomes irrevocable) and (C) the COBRA Benefits will be provided on a monthly basis. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 paragraph would be payable to you under this Agreement or any other plan, policy policy, or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Inc. or any affiliate, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, ; in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. The For the avoidance of doubt, the amounts payable to you under this Section 3.9(a) paragraph shall be in lieu of any amounts payable to you under Section 3.8 abovethe previous paragraph (Severance).
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 1 contract
Samples: Employment Agreement (Barnes & Noble Education, Inc.)
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicableControl, then the Company shall pay you an amount equal to two three times the sum of (ax) your then Annual Base Salary, (by) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years (beginning on May 2, 2015) preceding the date of your termination of employment (or such lesser number of completed fiscal years beginning on May 2, 2015 and ending on the date of your termination of employment) and (cz) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). If your employment terminates on or before April 30, 2016, the amount determined under clause (ii) above for purposes of calculating the Change of Control Amount shall be the 2016 Bonus. The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. Notwithstanding the foregoing, any then-unvested portion of any time-based restricted stock units that are part of a Stock Grant shall vest immediately upon the occurrence of a Change of Control. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 3.10 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensationcompensation within the meaning of Section 409A of the Code, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any tax-qualified or non tax-qualified pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.10(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a3.10(a) shall be in lieu of any amounts payable to you under Section 3.8 3.9 above.. 5
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:: (i) after the Effective Date hereof, any person, entity or “group” as identified in Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the “1934 Act”), other than you or any of your affiliates or Xxxxxxx Xxxxxx or any of his heirs or affiliates, becomes a beneficial owner (as such term is defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities of the Company representing 40% or more of the total number of votes that may be cast for the election of directors of the Company; or (ii) within two years after a merger, consolidation, liquidation or sale of assets involving the Company, or a contested election of a Company director, or any combination of the foregoing, the individuals who were directors of the Company immediately prior thereto shall cease to constitute a majority of the Board; or (iii) within two years after a tender offer or exchange offer for voting securities of the Company, the individuals who were directors of the Company immediately prior thereto shall cease to constitute a majority of the Board. For the avoidance of doubt, the Proposed Distribution shall not constitute of Change of Control. 4.
Appears in 1 contract
Samples: Employment Agreement
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.9(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 1 contract
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicableControl, then the Company shall pay you an amount equal to two three times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.34.3, 3.6 4.6 and 3.7 4.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 4.10 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 4.10(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a4.10(a) shall be in lieu of any amounts payable to you under Section 3.8 4.9 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 1 contract
Change of Control Payments. (a) If at Notwithstanding anything contained in this Agreement to the contrary, to the extent that any time Payments would be subject to the Excise Tax, the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Employee shall be subject to the Excise Tax; provided, however, that if, during the Initial Term twenty-four (24) month period commencing on the Effective Date it shall be determined that any Agreement Payment would be subject to the Excise Tax and that the Agreement Payments, in the aggregate, exceed the Employee’s 280G Threshold by fifteen percent (15%) or more, then the Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any Renewal Term (i) there is a Change of Control (as defined belowinterest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Agreement Payments.
(iib) your employment Subject to the provisions of Section 8(c), all determinations required to be made under this Section 8, including whether and to what extent the Agreement Payments exceed the Employee’s 280G Threshold and when a Gross-Up Payment is terminated required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by the nationally recognized certified public accounting firm used by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following immediately prior to the Change of Control or or, if such firm declines to serve, such other nationally recognized certified public accounting firm as may be designated by the remainder Employee (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Employee within fifteen (15) business days of the Initial Term receipt of notice from the Employee that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. If it is determined that the Employee’s Payments should be reduced pursuant to Section 8(a) above, the Employee shall be entitled to designate the Payments to be so reduced in order to give effect to Section 8(a) above; provided that if the Employee fails to make such designation within ten (10) business days after receipt of the notice from the Accounting Firm, the Company may effect such reduction in any Renewal Termmanner it deems appropriate. Subject to Section 8(e) below, any Gross-Up Payment, as applicabledetermined pursuant to this Section 8, then shall be paid by the Company shall pay you an amount equal to two times the sum of Employee within five (a5) your then Annual Base Salary, (b) the average business days of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount receipt of the payments made or to Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Employee. For purposes of making the calculations required by this Section 8, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company for purposes of providing you should have been made (“Underpayment”), consistent with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall calculations required to be paid to you in cash in a single lump sum within 30 days after the date your employment terminatesmade hereunder. In the event that it the Company exhausts its remedies pursuant to Section 8(c) and the Employee thereafter is determined that required to make a payment of any Excise Tax, the aggregate Accounting Firm shall determine the amount of the payments Underpayment that has occurred and benefits that could any such Underpayment shall be considered “parachute payments” within promptly paid by the meaning Company to or for the benefit of Section 280G the Employee.
(c) The Employee shall notify the Company in writing of any claim by the Internal Revenue Code Service that, if successful, would require the payment by the Company of 1986the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Employee is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Employee shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Employee in writing prior to the expiration of such period that it desires to contest such claim, the Employee shall:
(i) give the Company any information reasonably requested by the Company relating to such claim;
(ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; and
(iii) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 8(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as amended (collectivelythe Company shall determine; provided, with however, that if the regulations Company directs the Employee to pay such claim and other guidance promulgated thereunderxxx for a refund, the “Code”Company shall advance the amount of such payment to the Employee, on an interest-free basis and shall indemnify and hold the Employee harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Employee with respect to which such payments and benefitscontested amount is claimed to be due is limited solely to such contested amount. Furthermore, the “Parachute Payments”) that, but for this Section 3.9 Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and the Employee shall be entitled to you under this Agreement settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc., exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 abovetaxing authority.
(bd) As used hereinIf, “Change after the receipt by the Employee of Control” an amount advanced by the Company pursuant to Section 8(c), the Employee becomes entitled to receive any refund with respect to such claim, the Employee shall mean (subject to the occurrence Company’s complying with the requirements of one Section 8(c)) promptly pay to the Company the amount of such refund (together with any interest paid or more credited thereon after taxes applicable thereto). If, after the receipt by the Employee of an amount advanced by the Company pursuant to Section 8(c), a determination is made that the Employee shall not be entitled to any refund with respect to such claim and the Company does not notify the Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.
(e) Notwithstanding any other provision of this Section 8, the Company may withhold and pay over to the Internal Revenue Service for the benefit of the following events:Employee all or any portion of the Gross-Up Payment that it determines in good faith that it is or may be in the future required to withhold, and the Employee hereby consents to such withholding.
Appears in 1 contract
Samples: Change of Control Severance Agreement (Spansion Inc.)
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two three times the sum of (ax) your then Annual Base Salary, (by) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years preceding the date of your termination of employment (or, if fewer, the number of fiscal years in which you were employed pursuant to this Agreement unless such termination occurs in fiscal year 2018, in which case this subclause (y) shall be $1,650,000) and (cz) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 3.4 and 3.7 3.8 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 3.10 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensationcompensation within the meaning of Section 409A of the Code, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any tax-qualified or non tax-qualified pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.10(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a3.10(a) shall be in lieu of any amounts payable to you under Section 3.8 3.9 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 1 contract
Samples: Employment Agreement (Barnes & Noble Education, Inc.)
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicableControl, then the Company shall pay you an amount equal to two three times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.33.4, 3.6 3.7 and 3.7 3.8 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 3.10 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.10(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a3.10(a) shall be in lieu of any amounts payable to you under Section 3.8 3.9 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 1 contract
Change of Control Payments. (a) If at Notwithstanding anything contained in this Agreement to the contrary, to the extent that any time Payments would be subject to the Excise Tax, the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive shall be subject to the Excise Tax; provided, however, that if, during the Initial Term twenty-four (24) month period commencing on the Effective Date it shall be determined that any Agreement Payment would be subject to the Excise Tax and that the Agreement Payments, in the aggregate, exceed the Executive’s 280G Threshold by fifteen percent (15%) or more, then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any Renewal Term (i) there is a Change of Control (as defined belowinterest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Agreement Payments. Any such Gross-Up Payment shall be paid as soon as practicable after its determination pursuant to this Section 8, but in any event prior to the last day of the calendar year following the year in which the taxes to which such Gross-Up Payment relates are remitted to the appropriate taxing authorities.
(iib) your employment Subject to the provisions of Section 8(c), all determinations required to be made under this Section 8, including whether and to what extent the Agreement Payments exceed the Executive’s 280G Threshold and when a Gross-Up Payment is terminated required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by the nationally recognized certified public accounting firm used by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following immediately prior to the Change of Control or or, if such firm declines to serve, such other nationally recognized certified public accounting firm as may be designated by the remainder Executive (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Initial Term receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. If it is determined that the Executive’s Payments should be reduced pursuant to Section 8(a) above, the Executive shall be entitled to designate the Payments to be so reduced in order to give effect to Section 8(a) above; provided that if the Executive fails to make such designation within ten (10) business days after receipt of the notice from the Accounting Firm, the Company may effect such reduction in any Renewal Termmanner it deems appropriate. Subject to Section 8(e) below, any Gross-Up Payment, as applicabledetermined pursuant to this Section 8, then shall be paid by the Company shall pay you an amount equal to two times the sum of Executive within five (a5) your then Annual Base Salary, (b) the average business days of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount receipt of the payments made or to Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. For purposes of making the calculations required by this Section 8, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company for purposes of providing you should have been made (“Underpayment”), consistent with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall calculations required to be paid to you in cash in a single lump sum within 30 days after the date your employment terminatesmade hereunder. In the event that it the Company exhausts its remedies pursuant to Section 8(c) and the Executive thereafter is determined that required to make a payment of any Excise Tax, the aggregate Accounting Firm shall determine the amount of the payments Underpayment that has occurred and benefits that could any such Underpayment shall be considered “parachute payments” within promptly paid by the meaning Company to or for the benefit of Section 280G the Executive.
(c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Code Service that, if successful, would require the payment by the Company of 1986the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the Company relating to such claim;
(ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; and
(iii) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 8(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as amended (collectivelythe Company shall determine; provided, with however, that if the regulations Company directs the Executive to pay such claim and other guidance promulgated thereunderxxx for a refund, the “Code”Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such payments and benefitscontested amount is claimed to be due is limited solely to such contested amount. Furthermore, the “Parachute Payments”) that, but for this Section 3.9 Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and the Executive shall be entitled to you under this Agreement settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc., exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 abovetaxing authority.
(bd) As used hereinIf, “Change after the receipt by the Executive of Control” an amount advanced by the Company pursuant to Section 8(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall mean (subject to the occurrence Company’s complying with the requirements of one Section 8(c)) promptly pay to the Company the amount of such refund (together with any interest paid or more credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 8(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.
(e) Notwithstanding any other provision of this Section 8, the Company may withhold and pay over to the Internal Revenue Service for the benefit of the following events:Executive all or any portion of the Gross-Up Payment that it determines in good faith that it is or may be in the future required to withhold, and the Executive hereby consents to such withholding.
Appears in 1 contract
Samples: Change of Control Severance Agreement (Spansion Inc.)
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two three times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment (or such shorter period beginning on your Date of Hire and ending on the date of your termination of employment) and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.9(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 1 contract
Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two times the sum of (aA) your then Annual Base Salary, (bB) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (cC) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensationcompensation within the meaning of Section 409A of the Code, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any tax-qualified or non-qualified pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.9(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 above.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
Appears in 1 contract
Change of Control Payments. (a) If at Notwithstanding anything to the contrary contained herein (including, without limitation, in Section 4(g) hereof), in the event that any time during payment or benefit received or to be received by Executive in connection with a termination of Executive's employment with the Initial Term and any Renewal Term Company (collectively, the "Severance Payments") would (i) there is constitute a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicable, then the Company shall pay you an amount equal to two times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “"parachute payments” payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations "Code") or any similar or successor provision to 280G and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”(ii) that, but for this Section 3.9 would 15(a), be payable subject to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc., exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code or any similar or successor provision to Section 4999 (the “"Excise Tax”"), then such Severance Payments (which Severance Payments shall collectively be referred to herein as the aggregate "Severance Parachute Payments")shall be reduced to the largest amount which would result in no portion of the Severance Parachute Payments payable being subject to you the Excise Tax. In the event any reduction of benefits is required pursuant to this Agreement, Executive shall not exceed be allowed to choose which benefits hereunder are reduced (e.g., reduction first from the amount Severance Payment, then from the vesting acceleration). If the Internal Revenue Service (the "IRS") determines that produces a Severance Parachute Payment is subject to the greatest after-tax benefit Excise Tax, then the Company may seek to you after taking into account enforce the provisions of Section 15(b) hereof. Such enforcement of Section 15(b) hereof shall be the only remedy, under any Excise Tax and all applicable state and federal laws or otherwise, for Executive's failure to be payable by you. Any reduction in reduce the Severance Parachute Payments pursuant so that no portion thereof is subject to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. The amounts payable to you under this Section 3.9(a) shall be in lieu of any amounts payable to you under Section 3.8 aboveExcise Tax.
(b) As used hereinIf, “Change of Control” shall mean notwithstanding the occurrence of one or more reduction described in Section 15(a) hereof, the IRS determines that Executive is liable for the Excise Tax as a result of the following events:receipt of a Severance Parachute Payment, then Executive shall, subject to the provisions of this Agreement, be obligated to pay to the Company (the "Repayment Obligation") an amount of money equal to the "Repayment Amount." The Repayment Amount with respect to a Severance Parachute Payment shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive's net proceeds with respect to any Severance Parachute Payment (after taking into account the payment of the Excise Tax imposed on such Severance Parachute Payment) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to a Severance Parachute Payment shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Severance Parachute Payment. If the Excise Tax is not eliminated through the performance of the Repayment Obligation, Executive shall pay the Excise Tax. The Repayment Obligation shall be performed within 30 days of either (i) Executive's entering into a binding agreement with the IRS as to the amount of Executive's Excise Tax liability or (ii) a final determination by the IRS or a court decision requiring Executive to pay the Excise Tax with respect to such a Severance Parachute Payment from which no appeal is available or is timely taken.
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Change of Control Payments. (a) If at any time during the Initial Term and any Renewal Term (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company by non-renewal of this Agreement or without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicableControl, then the Company shall pay you an amount equal to two times the sum of (ax) your then Annual Base Salary, (by) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years (beginning on May 1, 2016) preceding the date of your termination of employment (or such lesser number of completed fiscal years beginning on May 1, 2016 and ending on the date of your termination of employment) and (cz) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Amount”). If your employment terminates on or before April 29, 2017, the amount determined under clause (ii) above for purposes of calculating the Change of Control Amount shall be equal to the 2017 Bonus. The Change of Control Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 3.10 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensationcompensation within the meaning of Section 409A of the Code, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any tax-qualified or non tax-qualified pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.10(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a3.10(a) shall be in lieu of any amounts payable to you under Section 3.8 3.9 above.
(b) As used herein, “Change of Control” shall mean have the occurrence of one or more meaning set forth in the Plan, as in effect as of the following events:date hereof.
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Change of Control Payments. (a) If at any time during In the Initial Term and any Renewal Term event that (i) there is a Change of Control (as defined below) and (ii) your employment is terminated by the Company without Cause or you voluntarily terminate your employment for Good Reason, in either case, within the greater of two years following the Change of Control or the remainder of the Initial Term or any Renewal Term, as applicableControl, then the Company shall pay you an amount equal to two times the sum of (a) your then Annual Base Salary, (b) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (c) the aggregate annual dollar amount of the payments made or to be made by the Company for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Change of Control Severance Amount”). The Change of Control Severance Amount shall be paid to you in cash in a single lump sum within 30 days after the date your employment terminates. In the event that it is determined that the aggregate amount of the payments and benefits that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (collectively, with the regulations and other guidance promulgated thereunder, the “Code”; and such payments and benefits, the “Parachute Payments”) that, but for this Section 3.9 3.8 would be payable to you under this Agreement or any other plan, policy or arrangement of the Company or Xxxxxx & Xxxxx Education, Inc.Company, exceeds the greatest amount of Parachute Payments that could be paid to you without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to you shall not exceed the amount that produces the greatest after-tax benefit to you after taking into account any Excise Tax to be payable by you. Any reduction in Parachute Payments pursuant to the immediately preceding sentence shall be made in the following order: (1) cash payments that do not constitute deferred compensation within the meaning of Section 409A of the Code, (2) welfare or in-kind benefits, (3) equity compensation awards and (4) cash payments that do constitute deferred compensation, in each case, such reductions shall be made in the manner that maximizes the present value to you of all such payments. Subject to the Section 280G limitation referred to above, to the extent that you are not fully vested in any retirement benefits from any pension, profit-sharing or other retirement plan or program maintained by the Company and your employment terminates in the circumstances contemplated by this Section 3.8(a), the Company shall pay directly to you within 30 days after the date on which your employment terminates the difference between the amounts that would have been paid to you had you been fully vested on the date that your employment terminates and the amounts actually paid or payable to you pursuant to such plans or programs. The amounts payable to you under this Section 3.9(a3.8(a) during the two-year period following a Change of Control shall be in lieu of any amounts payable to you under Section 3.8 above3.7 and shall be in full satisfaction of the Company’s obligations hereunder; provided, however, that if your employment is terminated by the Company without Cause or by you for Good Reason following such two-year period, Section 3.7, and not Section 3.8, shall apply.
(b) As used herein, “Change of Control” shall mean the occurrence of one or more of the following events:
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