Effect of Code §280G Sample Clauses
Effect of Code §280G. [1] If the sum of the payments and benefits described in Section 2.01 (collectively, the “Payments”) constitute “excess parachute payments” as defined in Code §280G, the Company will either: [a] Pay the Employee an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Employee, after deduction of any excise tax under Code §4999 (the “Excise Tax”) and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Payments to the Employee; provided, however, that this Section 2.02[1][a] shall apply only if the sum of the Payments that constitute amounts described in Code §280G(b)(2)(A)(i) is equal to or greater than one-hundred and ten (110) percent of the limitation described in Code §280G(b)(2)(A)(ii) (the "280G Limit"); or [b] Reduce the Payments to the minimum extent necessary to avoid the imposition of the Excise Tax or loss of deduction under Code §280G; provided, however, that this Section 2.02[1][b] shall apply only if the sum of the Payments that constitute amounts described in Code §280G(b)(2)(A)(i) is less than one-hundred and ten (110) percent of the 280G Limit. Any reduction under this Section 2.02[1][b] shall be made in compliance with Code §409A. [2] Subject to the provisions of Section 2.02[3], all determinations under this Section 2.02, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by a certified public accounting firm which was, immediately before the Change in Control, the Company’s certified public accounting firm, or such other nationally recognized certified public accounting firm as may be designated by the Employee (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations to both the Company and the Employee within ten (10) business days after receipt of notice from the Company or the Employee that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Employee may appoint another nationally recognized accounting firm to make the determination required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be final and bindin...
Effect of Code §280G. If the sum of the amounts described in Section 5.01 and those promised under any other plan, program or agreement between the Executive and any Group Member constitute “excess parachute payments” as defined in Code §280G(b)(1), in the Corporation’s sole discretion, the Corporation (or the Employer) will either:
[1] Reimburse the Executive for the amount of any excise tax due under Code §4999, if this procedure provides the Executive with an after-tax amount that is greater than the after-tax amount produced under Section 5.02[2]; or [2] Reduce the Executive’s payments under this Agreement so that the Executive’s total payments under this and any all other agreements will be $1.00 less than the amount that would trigger the excise tax under Code §4999 if this procedure provides the Executive with an after-tax amount that is greater than the after-tax amount produced under Section 5.02[1]. [3] Any reimbursement by the Corporation pursuant to Section 5.02[1] shall be made no later than the end of the taxable year of the Executive next following the taxable year of the Executive in which the Executive remits the related taxes. Any reduction pursuant to Section 5.02[2] shall be made in accordance with Code §409A and the Treasury Regulations promulgated thereunder. [4] The value of all amounts due under this Agreement will be established by a nationally recognized certified public accounting firm designated by the Corporation and by applying principles, assumptions and procedures consistent with Code §280G.