Code Section 4999. (i) If, by reason of, or in connection with, any transaction that occurs after the Original Effective Date, Executive would be subject to the imposition of the excise tax imposed by Code Section 4999 related to Executive’s employment with the Company, whether before or after termination of Executive’s employment, but the imposition of such tax could be avoided by approval of shareholders described in Code Section 280G(b)(5)(B), then Executive may ask the Company to seek such approval, in which case the Company will use its reasonable best efforts to cause such approval to be obtained and Executive will cooperate and execute such waivers as may be necessary so that such approval avoids imposition of any excise tax under Code Section 4999. If Executive fails to request that the Company seek such approval, or if Executive does request that the Company seek such approval, but fails to cooperate and execute such waivers as may be necessary in the approval process, Section 7(g)(ii) shall not apply and Executive shall not be entitled to any gross-up payment for any resulting tax under Code Section 4999. If such approval, even if sought and obtained, would not avoid imposition of the excise tax imposed under Code Section 4999, then the provisions of Section 7(g)(ii) shall apply without any precedent obligation of Executive to seek such approval.
Code Section 4999. If, as a result of payments provided for under or pursuant to this Agreement together with all other payments in the nature of compensation provided to or for the benefit of Executive, any state, local or federal taxing authority imposes any taxes on Executive that would not be imposed on such payments but for the occurrence of a change of control, including any excise tax under Section 4999 of the Code, then, in addition to any other benefits provided under or pursuant to this Agreement or otherwise, the Company (including any successor to or assignee of the Company) shall pay to Executive at the time any such payments are made under or pursuant to this Agreement or the other agreements, an amount equal to the amount of any such taxes imposed or to be imposed on Executive (the amount of any such payment, the “Tax Reimbursement”). In addition, the Company (including any successor to or assignee of the Company) shall “gross up” such Tax Reimbursement by paying to Executive at the same time an additional amount equal to the aggregate amount of any additional taxes (whether income taxes, excise taxes, special taxes, employment taxes or otherwise) that are or will be payable by Executive as a result of the Tax Reimbursement being paid or payable to Executive and/or as a result of the additional amounts paid or payable to Executive pursuant to this sentence, such that after payment of such additional taxes Executive shall have been paid on a net after-tax basis an amount equal to the Tax Reimbursement. The amount of any Tax Reimbursement and of any such gross-up amounts shall be determined by the Company’s independent auditing firm, whose determination, absent manifest error, shall be treated as conclusive and binding absent a binding determination by a governmental taxing authority that a greater amount of taxes is payable by Executive. Any reimbursement under this Section 10 shall be paid by the Company at the time required herein, but in no event later than the December 31 of the calendar year following the calendar year during which the Executive pays the tax subject to reimbursement under this Section 10.
Code Section 4999. 5.1 In the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), Employee would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to have the Payment either (A) paid or delivered in full, or (B) capped at the amount that is $1 less than three times Employee’s “base amount,” whichever of the foregoing results in the receipt by Employee of the greatest benefit on an after-tax basis (taking into account applicable taxes, including federal, state and local income taxes and the Excise Tax). Any reduction of the Payment required by this subsection shall be carried out by applying the following principles, in order:
(1) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits included in the Payment (on the basis of the relative present value of the parachute payments).
5.2 All determinations required to be made under this Section 5 shall be made by the Company’s Independent Public Accounting Firm (the “Accounting Firm”) which shall provide detailed supporting calculations and documentation both to the Company and Employee within fifteen (15) business days of receipt of notice from Employee that there has been a Payment or such earlier time as is requested by the Company. The Company and Employee shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make the determinations required under this Section 5. In the event that the Accounting Firm is serving as accounta...
Code Section 4999. (i) If any Payments (as defined in Paragraph 5(h)(ii) to be made to or for the benefit of the Executive under this Agreement or under any plan or arrangement maintained by the Company or its affiliated companies are subject to the excise tax (the “Excise Tax”) under section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then such Payments shall be reduced by the smallest amount necessary in order for no portion of the Executive’s total Payments to be subject to the Excise Tax.
(ii) No reduction in any of the Executive’s Payments shall be made pursuant to Paragraph 5(g)(i) above if the After Tax Amount of the Payments payable to Executive without such reduction would exceed the After Tax Amount of the reduced Payments payable to Executive in accordance with Paragraph 5(g)(i) above. For purposes of the foregoing, (i) the “After Tax Amount” of the Executive’s Payments, as computed with, and as computed without, the reduction provided for under Paragraph 5(g)(i), shall mean the amount of the Payments, as so computed, that the Executive would retain after payment of all taxes (including without limitation any federal, state or local income taxes, the Excise Tax or any other excise taxes, any employment, social security or medicare taxes, and any other taxes) imposed with respect to such Payments in the year or years in which payable; and (ii) the amount of such taxes shall be computed at the rates in effect under the applicable tax laws in the year in which the 280G Change in Control occurs, or if then ascertainable, the rates in effect in any later year in which any Payment is expected to be paid following the 280G Change in Control (and if not so ascertainable, using then current rates), and in the case of any income taxes, by using the maximum combined federal, state and (if applicable) local income tax rates then in effect under such laws.
(iii) Any reduction in the Executive’s Payments required to be made pursuant to Paragraph 5(g)(i) above (the “Required Reduction”) shall be made as follows: first, any outstanding performance-based cash or equity incentive awards the performance periods for which had not ended, and the performance goals for which had not been attained, prior to the occurrence of the Change in Control, to the extent such awards are treated as Payments, shall be reduced, by cancellation of the acceleration of the vesting and time of payment of such awards; second, any severance payments or benefits, or any other Payment...
Code Section 4999. If any payments or benefits to be made to or for the benefit of the Executive under this Agreement or under any plan or arrangement maintained by the Company or its affiliated companies are subject to the excise tax under Code Section 4999, such payments or benefits nonetheless shall be subject to the provisions set forth in Exhibit B attached to this Agreement and made part hereof as if set forth at length in the body of the Agreement.
Code Section 4999. To the extent that the amount of any payments under Sections 9 or 10 or any other payment herein in the nature of compensation (within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), to or for the benefit of Executive, whether paid or payable pursuant to the Agreement or otherwise by the Company (the “Payments”), are subject to the excise tax provisions of Section 4999 or the Code, the Company shall pay a tax equalization payment (the “Tax Equalization Payment”) in accordance with this Section 28, in addition to such payments. The Tax Equalization Payment shall be in an amount that when added to the Payments will place Executive in the same after-tax (including, without limitation, federal, state and local income and employment taxes, excise taxes, and any interest and penalties imposed with respect thereto) position as if the excise tax penalty of Section 4999 of the Code, did not apply to any of the Payments. The amount of this Tax Equalization Payment shall be determined by the Company’s independent accountants and shall be remitted to the applicable United States federal, state and local tax jurisdictions. All fees of the accounting firm for such determination shall be borne by the Company. Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Tax Equalization Payment (or an additional Tax Equalization Payment). Executive shall cooperate with the Company to determine whether, and how, to contest such claim. The Company shall bear and pay directly all costs and expenses (including additional taxes, interest and penalties) incurred in connection with such claim and/or contest and shall indemnify and hold Executive harmless, on an after-tax basis, for excise tax or income tax (including interest and penalties with respect thereto) imposed as a result of such claim and/or contest and payment for costs and expenses. In accordance with Treasury Regulation Section 1.409A-3, Tax Equalization Payment(s) shall be made to Executive no later than the end of the calendar year following the calendar year in which the amount(s) of the applicable taxes are remitted to the applicable taxing authorities described above.
Code Section 4999. (a) In the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), the Executive would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to have the Payment either (A) paid or delivered in full, or (B) capped at the amount that is $1 less than two times the Executive’s “base amount,” whichever of the foregoing results in the receipt by the Executive of the greatest benefit on an after-tax basis (taking into account applicable taxes, including federal, state and local income taxes and the Excise Tax). Any reduction of the Payment required by this subsection shall be carried out by applying the following principles, in order: (1) the payment or
Code Section 4999. Notwithstanding anything in this Agreement to the contrary, in the event that any payment by the Company to or for the Executive’s benefit, whether paid or payable pursuant to the terms of this Agreement or otherwise (the “Severance Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, the following provisions shall apply:
a) If the Severance Payments, reduced by the sum of (i) the Excise Tax (defined below) and (ii) the total of the federal, state and local income and employment taxes payable by the Executive on the amount of the Severance Payments which are in excess of the Threshold Amount (defined below), are greater than or equal to the Threshold Amount, the Executive shall be entitled to the full benefits payable under this Agreement.
b) If the Threshold Amount is less than (i) the Severance Payments, but greater than (ii) the Severance Payments reduced by the sum of (1) the Excise Tax and (2) the total of the federal, state and local income and employment taxes on the amount of the Severance Payments which are in excess of the Threshold Amount, then the benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the maximum Severance Payments shall not exceed the Threshold Amount. To the extent that there is more than one method of reducing the payments to bring them within the Threshold Amount, the Executive shall determine which method shall be followed; provided, however, that if the Executive fails to make such determination within forty-five (45) days after the delivery by the Company to the Executive of written notice of the need for such reduction, the Company may determine the amount of such reduction in its sole discretion.
Code Section 4999. The Executive acknowledges that payments or benefits to be made to or for the benefit of the Executive under this Agreement or under any plan or arrangement maintained by the Company or its affiliated companies may be subject to the excise tax under Code Section 4999, and that no “gross up” payments will be payable by the Company in respect thereof.
Code Section 4999. _Notwithstanding anything contained in this Agreement to the contrary, to the extent that any payment, benefit or distribution of any type to or for your benefit by the Company or any of its affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any vesting of stock options or other equity-based awards) (collectively, the “Total Payments”) would be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to be subject to the excise tax imposed by Section 4999 of the Code. Unless you shall have given prior written notice to the Company to effectuate a reduction in the Total Payments if such a reduction is required, any such notice consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any vesting of stock options or similar awards, then by reducing or eliminating any vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. The provisions of this Section 13 shall take precedence over the provisions of any other plan, arrangement or agreement governing your rights and entitlements to any benefits or compensation. Any determination that Total Payments to you must be reduced or eliminated and the assumptions to be utilized in arriving at such determination, shall be made by the Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances.
