Golden Parachute Excise Tax. The Company and Executive agree that Executive’s execution of a non-competition agreement is a material inducement to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would receive from the Company or otherwise in connection with a Change in Control (as defined in the Plan) or other similar transaction (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Amount. The “Reduced Amount” will be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount ((x) or (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments will occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculations, the Company will appoint a nationally recognized firm that has expertise in these calculations to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executive.
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Samples: Key Employee Agreement (Millennial Media Inc.), Key Employee Agreement (Millennial Media Inc.)
Golden Parachute Excise Tax. The Company and Executive agree that Executive’s execution of a non-competition agreement is a material inducement to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if (a) If any payment or benefit the Executive would receive from pursuant to Section 6(d) above or pursuant to any other agreement with the Company or otherwise in connection with following a Change in Control (as defined in the Plan) or other similar transaction otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, Code and (ii) but for this sentenceSection 28, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will shall be equal reduced to the Reduced Amount. The “Reduced Amount” will shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount ((x) or (y))which, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt receipt, on an after-tax basis, of the greater economic benefit amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in payments or benefits constituting “parachute payments” is necessary so that the Payments will Payment equals the Reduced Amount, reduction shall occur in the following order: (1) cash payments, in the following order: (a) reduction of cash payments; first, severance payments hereunder and (b) cancellation of accelerated vesting of equity awards second, any other than stock options; cash payments hereunder or under any other agreement between the Company and the Executive, (c2) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting will be canceledof restricted stock, subject restricted stock units and other equity awards that vest only based on the Executive’s continued service to the immediately preceding sentenceCompany, in or any other awards that vest only based on the reverse order Executive’s continued service to the Company, taking the last ones scheduled to vest (absent the acceleration) first, (3) cancellation of the date acceleration of grant. The registered public accounting firm engaged by vesting of performance-based restricted stock, restricted stock units and other equity awards, taking the Company for general audit purposes as last ones schedule to vest (absent the acceleration) first and (4) other non-cash forms of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculations, the Company will appoint a nationally recognized firm that has expertise in these calculations to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executivebenefits.
Appears in 1 contract
Samples: Employment Agreement (Childrens Place Retail Stores Inc)
Golden Parachute Excise Tax. The Company and Executive agree that Executive’s execution If all or any part of a non-competition agreement is a material inducement to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account Change of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would receive from the Company or otherwise in connection with a Change in Control (as defined in the Plan) or other similar transaction (“Payment”) Benefits would (ia) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (iib) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will the Change of Control Benefits shall be equal reduced to the Reduced Amount. The “Reduced Amount” will shall be either whichever of the following which would provide the largest after-tax benefit to the Executive between (xy) the largest portion of the Payment Change of Control Benefits that would result in no portion of the Payment Change of Control Benefits being subject to the Excise Tax, or ; and (yz) the largest portion, up to and including the total, of the PaymentChange of Control Benefits, whichever amount ((x) or (y))amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt receipt, on an after-tax basis, of the greater economic benefit amount of the Change of Control Benefits notwithstanding that all or some portion of the Payment Change of Control Benefits may be subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments will occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration the Change of compensation from Executive’s equity awards Control Benefits is to be reduced, such acceleration then unless the Executive elects in writing a different order for cancellation or for reduction of vesting will the Change of Control Benefits, first the Acceleration (if applicable) shall be canceled, subject to the immediately preceding sentence, cancelled in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as grant of the day prior to Executive’s stock awards, and if thereafter the effective date Change of Control Benefits must be further reduced, then the amount of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculations, the Company will appoint a nationally recognized firm that has expertise in these calculations to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such independent registered public accounting firm required to Cash Payment shall be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executivereduced.
Appears in 1 contract
Samples: Change of Control Agreement (Lightpath Technologies Inc)
Golden Parachute Excise Tax. The Company and Executive agree that Executive’s execution of a non-competition agreement is a material inducement to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if If any payment or benefit Executive Officer would receive from the Company or otherwise in connection with pursuant to a Change in Control (as defined in from the Plan) Employer or other similar transaction otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the CodeInternal Revenue Code (“Section 280G”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (the “Excise Tax”), then such Payment will the Employer shall cause to be equal to the Reduced Amount. The “Reduced Amount” will be either (x) the largest portion determined, before any amounts of the Payment that are paid to Officer, which of the following two (2) amounts would result maximize Officer’s after-tax proceeds: (i) payment in no portion full of the entire amount of the Payment being subject to the Excise Tax(a “Full Payment”), or (yii) payment of only a part of the Payment so that Officer receives the largest portion, up to and including payment possible without the total, imposition of the Payment, whichever amount ((x) or (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal ratea “Reduced Payment”), whichever amount results in ExecutiveOfficer’s receipt receipt, on an after-tax basis, of the greater economic benefit amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. For purposes of determining whether to make a Full Payment or a Reduced Payment, the Employer shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes) required to be paid by Officer. If a Reduced Amount will give rise Payment is made, (i) the Payment shall be paid, only to the greater after tax benefitextent permitted under the Reduced Payment alternative, and Officer shall have no rights to any additional payments and/or benefits constituting the Payment, (ii) reduction in the Payments will payments and/or benefits shall occur in the following order: order unless Officer elects in writing a different order (a) provided, however, that such election shall be subject to Employer approval if made on or after the date on which the event that triggers the Payment occurs), reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) , cancellation of accelerated vesting of stock options; awards and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that arebenefits. In the event that acceleration of compensation from ExecutiveOfficer’s equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculations, the Company will appoint a nationally recognized firm that has expertise in these calculations to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executive.shall be
Appears in 1 contract
Golden Parachute Excise Tax. The Company and Executive agree that Executive’s execution of a non-competition agreement is a material inducement Notwithstanding anything in the foregoing to the severance contrary, if any of the payments and benefits to you (prior to any reduction described in this paragraph) provided pursuant to for in this Agreement, and together with any other payments which you have the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would right to receive from the Company or otherwise in connection with any corporation which is a Change in Control (member of an “affiliated group” as defined in Section 1504(a) of the Plan) or other similar transaction Internal Revenue Code of 1986, as amended (“PaymentCode”), without regard to Section 1504(b) of the Code, of which the Company is a member (the “Payments”) would (i) constitute a “parachute payment” within the meaning of (as defined in Section 280G 280G(b)(2) of the Code) and if the Safe Harbor Amount is greater than the Taxed Amount, and (ii) but for this sentence, then the total amount of such Payments shall be subject reduced to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Safe Harbor Amount. The “Reduced Safe Harbor Amount” will be either (x) is the largest portion of the Payment Payments that would result in no portion of the Payment Payments being subject to the excise tax set forth at Section 4999 of the Code (“Excise Tax”). The “Taxed Amount” is the total amount of the Payments (prior to any reduction as described in this paragraph) notwithstanding that all or some portion of the Payments may be subject to the Excise Tax, or (y) . Solely for the largest portion, up to and including the total, purpose of comparing which of the PaymentSafe Harbor Amount and the Taxed Amount is greater, whichever amount ((x) or (y))the determination of each such amount, after shall be made on an after-tax basis, taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a Reduced Amount will give rise reduction of the Payments to the greater after tax benefitSafe Harbor Amount is necessary, then the reduction in the Payments will shall occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock optionsawards; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that areemployee benefits. In the event that acceleration of compensation from Executive’s equity awards vesting of a stock award is to be reduced, such acceleration of vesting will shall be canceled, subject to the immediately preceding sentence, cancelled in the reverse order of the date of grantgrant of your stock awards. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) Change of the Code will Control transaction shall perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer individual, entity or is group effecting the Change of Control, or the Company otherwise unable or unwilling to perform determines such accounting firm should not be engaged for purposes of making the calculationsdeterminations required hereunder, the Company will may appoint a nationally recognized accounting firm that has expertise in these calculations to make the determinations required hereunder. The Company will shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder will shall provide its calculations, together with detailed supporting documentation, to the Company and Executive you within thirty (30) 15 calendar days after the date on which Executive’s your right to a Payment is triggered (if requested at that time by the Company or Executiveyou) or such other time as reasonably requested by the Company or Executive. Any good faith determinations you upon written notice that a payment related to a Change of Control of the independent registered public accounting firm made hereunder will Company has been or is to be final, binding and conclusive upon the Company and Executivemade.
Appears in 1 contract
Golden Parachute Excise Tax. The Company and Executive agree that Executive’s 's execution of a non-competition agreement is a material inducement to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would receive from the Company or otherwise in connection with a Change in Control (as defined in the Plan) or other similar transaction (“"Payment”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then such Payment will be equal to the Reduced Amount. The “"Reduced Amount” " will be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount ((x) or (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s 's receipt of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments will occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “"deferred compensation” " within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Executive’s 's equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculations, the Company will appoint a nationally recognized firm that has expertise in these calculations to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s 's right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executive.
Appears in 1 contract
Golden Parachute Excise Tax. The Company and Executive agree that Executive’s execution (a) Any provision of a non-competition agreement is a material inducement this Agreement to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoingcontrary notwithstanding, if any payment or benefit Executive would receive from the Company pursuant to this Agreement or otherwise in connection with a Change in Control (as defined in the Plan) or other similar transaction (“Payment”) would individually or in the aggregate with all other Payments (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, Code and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced AmountAmount (as defined below). The “Reduced Amount” will be either (xA) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax, Tax or (yB) the largest portion, up to and including the total, of the entire Payment, whichever amount ((x) or (y)), after taking into account all applicable federal, state state, and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes that could be obtained from a deduction of such state and local taxes), results in Executive’s receipt ’ s receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (A) of the preceding sentence, the reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for Executive. If more than one method of reduction will give rise to result in the greater after tax same economic benefit, the reduction items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payments will occur in Payment being subject to taxes pursuant to Section 409A (as defined below) that would not otherwise be subject to taxes pursuant to Section 409A, then the following orderReduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A as follows: (a1) reduction of cash paymentsas a first priority, the modification shall preserve, to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (b2) cancellation of accelerated vesting of equity awards other than stock options; as a second priority, Payments that are contingent on future events (ce.g., being terminated without cause), shall be reduced (or eliminated) cancellation of accelerated vesting of stock optionsbefore Payments that are not contingent on future events; and (d3) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that isas a third priority, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts Payments that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts shall be reduced (or eliminated) before Payments that are. In are not deferred compensation within the event that acceleration meaning of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculations, the Company will appoint a nationally recognized firm that has expertise in these calculations to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executive.409A.
Appears in 1 contract
