Common use of Golden Parachute Limitation Clause in Contracts

Golden Parachute Limitation. Notwithstanding anything herein to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to this Agreement or otherwise (collectively, the “Payments”) would be treated as an “excess parachute payment,” as that phrase is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts and benefits the Executive would otherwise receive shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this section, the “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.

Appears in 14 contracts

Samples: Change in Control Agreement (Aceto Corp), Change in Control Agreement (Aceto Corp), Change in Control Agreement (Aceto Corp)

AutoNDA by SimpleDocs

Golden Parachute Limitation. Notwithstanding anything herein to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to this Agreement or otherwise (collectively, the “Payments”) would be treated as an “excess parachute payment,” as that phrase is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts and benefits the Executive would otherwise receive Payments shall be either: : (a) paid or allowed in full; or or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after-after tax basis of the greatest greater amount of Payments. For purposes of this section, the “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any Any determination required under this Section 5 3 will be made in writing by the Company’s legal counsel or independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree Company may select in its sole discretion (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 53, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs charged by the Firm may incur in connection with any calculations contemplated by this Section 53.

Appears in 10 contracts

Samples: Executive Severance Agreement (Altair Engineering Inc.), Executive Severance Agreement (Altair Engineering Inc.), Executive Severance Agreement (Altair Engineering Inc.)

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments(as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the amounts and benefits the Executive would otherwise receive Payments shall be either: either (a) paid or allowed delivered in full; or , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after-tax basis basis, of the greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 6, such Payments shall be eliminated or reduced (such that the reduction of compensation to be provided to Executive as long as after such election the aggregate present value a result of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will 13 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 13 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.

Appears in 5 contracts

Samples: Executive Employment Agreement, Executive Employment Agreement (Dataram Corp), Executive Employment Agreement (Dataram Corp)

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments(as that phrase such term is defined in under Section 280G of the Internal Revenue Code or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of 1986the Code or any successor provision (collectively, as amended “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the CodeExcise Tax”), then the amounts and benefits the Executive would otherwise receive Payments shall be either: either (a) paid or allowed delivered in full; or , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt by Employee, on an after-tax basis basis, of the greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 29, such Payments shall be eliminated or reduced (such that the reduction of compensation to be provided to Employee as long as after such election the aggregate present value a result of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will 29 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 29 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.

Appears in 4 contracts

Samples: Employment Agreement (U.S. Gold Corp.), Employment Agreement (U.S. Gold Corp.), Employment Agreement (U.S. Gold Corp.)

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments(as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the amounts and benefits the Executive would otherwise receive Payments shall be either: either (a) paid or allowed delivered in full; or , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after-tax basis basis, of the greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 6, such Payments shall be eliminated or reduced (such that the reduction of compensation to be provided to Executive as long as after such election the aggregate present value a result of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will 6 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 6 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.

Appears in 2 contracts

Samples: Employment Agreement (Digitalglobe Inc), Employment Agreement (Digitalglobe Inc)

Golden Parachute Limitation. Notwithstanding anything herein (i) In the event that the independent auditors most recently selected by the Board (the “Auditors”) determine that any payment by the Company under this Section 9(d) to or for the contrary, to the extent any amount to be paid or benefit to be provided to of the Executive pursuant to this Agreement or otherwise (collectively, the “Payments”) would be treated as an nondeductible by the Company for federal income tax purposes because of the provisions concerning “excess parachute payment,paymentsas that phrase is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts and benefits the Executive would otherwise receive total amount of all payments under this Section 9(d) shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this sectionSection 9(d), the “Reduced Amount” shall be an the amount expressed in present value which that maximizes the aggregate present value total amount of all Payments the payments without causing any Payment payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The . (ii) If the Auditors determine that any payment under this Section 9(d) would be nondeductible by the Company because of Section 280G of the Code, then the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Executive may elect then elect, in his sole discretion, which and how much of the Payments payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten days of receipt of notice. If no such election is made by the Executive within such ten-day period, then the Company may elect which and how much of the payments under this Section 9(d) shall be eliminated or reduced (as long as after such election the aggregate present value of the payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless All determinations made by the Auditors under this Section 9(d) shall be binding upon the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will and shall be made within 60 days of the date when a payment becomes payable. As a result of uncertainty in writing the application of Section 280G of the Code at the time of an initial determination by the Company’s independent public accountants immediately prior to a Change of Control Auditors hereunder, it is possible that payments will have been made by the Company that should not have been made (an “Overpayment”) or such other person or entity to which that additional payments that will not have been made by the parties mutually agree Company could have been made (the an FirmUnderpayment”), whose determination will be conclusive and binding consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Auditors, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive and that the Auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Executive which he or she shall repay to the Company. For purposes , together with interest at the applicable federal rate provided in Section 7872(f)(2) of making the calculations required Code; provided, however, that no amount shall be payable by this the Executive to the Company if and to the extent that such payment would not reduce the amount subject to taxation under Section 5, the 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. The In the event that the Auditors determine that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by the Company and to or for the Executive will furnish to benefit of the Firm such information and documents as Executive, together with interest at the Firm may reasonably request applicable federal rate provided in order to make a determination under this Section. The Company will bear all costs Section 7872(f)(2) of the Firm may incur in connection with any calculations contemplated by this Section 5Code.

Appears in 2 contracts

Samples: Employment Agreement (Graham Corp), Employment Agreement (Graham Corp)

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments(as that phrase such term is defined in under Section 280G of the Internal Revenue Code) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”) that would be subject to the excise tax imposed by Section 4999 of the Code of 1986or any successor provision (collectively, as amended “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the CodeExcise Tax”), then the amounts and benefits the Executive would otherwise receive Payments shall be either: either (a) paid or allowed delivered in full; or , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after-tax basis basis, of the greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 15, such Payments shall be eliminated or reduced (such that the reduction of compensation to be provided to Executive as long as after such election the aggregate present value a result of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will 15 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 15 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.

Appears in 2 contracts

Samples: Executive Employment Agreement (ChromaDex Corp.), Executive Employment Agreement (ChromaDex Corp.)

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments(as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the amounts and benefits the Executive would otherwise receive Payments shall be either: either (a) paid or allowed delivered in full; or , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after-tax basis basis, of the greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 11, such Payments shall be eliminated or reduced (such that the reduction of compensation to be provided to Executive as long as after such election the aggregate present value a result of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will 11 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 11 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.

Appears in 2 contracts

Samples: Executive Employment Agreement (Ault Global Holdings, Inc.), Executive Employment Agreement (Alzamend Neuro, Inc.)

Golden Parachute Limitation. Notwithstanding anything herein in this Agreement or any other agreement, contract or understanding to the contrary, contrary or any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the extent Participant, if the Participant is a “disqualified individual” as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended, or any successor provision, the total amount to be paid of all payments of cash or benefit to be property or other benefits in the nature of compensation contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the Company's assets, including, without limitation, the benefits provided to the Executive pursuant to this Agreement or otherwise any Other Agreement (collectivelyas defined in the 2014 Plan) or Benefit Arrangement (as defined in the 2014 Plan), shall not exceed the maximum amount that may be paid to Participant and not be deemed a Payments”) would be treated as an “excess parachute payment,as that phrase is defined resulting in an excise tax to Participant and a loss of compensation deduction to the Company, all within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended amended, or any successor provision. If the payments otherwise provided pursuant to this Agreement would result in Participant receiving such a “parachute payment”, they shall be reduced until the aggregate of all such payments is $1.00 less than the amount that would result in Participant receiving such a “parachute payment”. If such reduction is required, the Participant shall have the right, in the Participant’s sole discretion, to designate those rights, payments, or benefits under this Agreement, any Other Agreements (as defined in the “Code”2014 Plan), then and any Benefit Arrangements (as defined in the amounts and benefits 2014 Plan) that should be reduced or eliminated so as to avoid having the Executive would otherwise receive payment or benefit to the Participant under this Agreement be deemed a “parachute payment”, provided that any such payment or benefit that is excluded from the coverage of Section 409A of the Internal Revenue Code of 1986, as amended, or any successor provision, shall be either: reduced or eliminated prior the reduction or elimination of any benefit that is related to a 409A Award (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results as defined in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this section, the “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”2014 Plan), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.

Appears in 1 contract

Samples: Change in Control Compensation Agreement (Tecumseh Products Co)

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments(as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the amounts and benefits the Executive would otherwise receive Payments shall be either: either (a) paid or allowed delivered in full; or , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt by s, on an after-tax basis basis, of the greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 26, such Payments shall be eliminated or reduced (such that the reduction of compensation to be provided to Employee as long as after such election the aggregate present value a result of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will 26 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 26 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.

Appears in 1 contract

Samples: Employment Agreement (U.S. Gold Corp.)

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments(as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the amounts and benefits the Executive would otherwise receive Payments shall be either: either (a) paid or allowed delivered in full; or , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax (the “Capped Payment”), whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by the Executive’s receipt , on an after-tax basis basis, of the greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, the “Reduced Amount” shall be an amount expressed If a reduction in present value which maximizes the aggregate present value of all Payments without causing any Payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election is required so that the aggregate present value amount of the Payments equals the Reduced AmountCapped Payment, the Payments shall be reduced in the following order: (1) reduction of cash Payments otherwise payable to Executive that are exempt from Code Section 409A; (2) reduction of any other payments and benefits otherwise payable to Executive that are exempt from Code Section 409A; (3) cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Code Section 409A; (4) cancellation of accelerated vesting of stock options that are exempt from Code Section 409A; and (5) reduction of any other payments and benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Code Section 409A, as determined by the Company. If acceleration of vesting of Executives stock options or other equity awards is to be cancelled pursuant to clauses (3) or (4) of the immediately preceding sentence, such cancellation of the acceleration of vesting shall notify be accomplished by first canceling such acceleration for the Executive promptly of vesting installment that will vest last and continuing to the extent necessary by canceling such electionacceleration for the next vesting installment with the latest vesting. Unless All computations and determinations called for by this Section 1.8 shall be made and reported in writing to the Company and Executive by an independent accounting firm or independent tax counsel selected by the Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing subject to approval by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to , which the parties mutually agree approval shall not be unreasonably withheld (the “FirmTax Advisor”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company shall pay all fees and expenses charged by the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur Tax Advisor in connection with its services. In no event shall any calculations contemplated by reduction or cancellation of Payments pursuant to this Section 5.1.8 result in an impermissible change in the form or timing of payments, or an impermissible acceleration of payments, in violation of Code Section 409A.”

Appears in 1 contract

Samples: Senior Executive Severance Agreement (Ryland Group Inc)

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments(as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the amounts and benefits the Executive would otherwise receive Payments shall be either: either (a) paid or allowed delivered in full; or , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt by Employee, on an after-tax basis basis, of the greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 6, such Payments shall be eliminated or reduced (such that the reduction of compensation to be provided to Employee as long as after such election the aggregate present value a result of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will 6 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 6 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.

Appears in 1 contract

Samples: Severance Protection Agreement (Digitalglobe Inc)

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments(as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the amounts and benefits the Executive would otherwise receive Payments shall be either: either (a) paid or allowed delivered in full; or , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after-tax basis basis, of the greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes Any reduction or elimination of the Payments pursuant to this section, the “Reduced Amount” Section 6 shall be an amount expressed by first reducing or eliminating those Payments which are payable in present value cash and then by reducing or eliminating those Payments which maximizes the aggregate present value of all are not payable in cash, in each case in reverse order beginning with Payments without causing any Payment which are to be nondeductible by paid the Company because of Section 280G or subjecting farthest in time from the Executive to an excise tax under Section 4999 of the CodeDetermination. The Company may elect which and how much of determination as to whether the Payments shall be reduced, and, if so, the order in which payments will be reduced or eliminated or reduced (as long as after unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate such election reduction, which notice and order shall comply with the aggregate present value requirements of Section 409A of the Payments equals Code so as to avoid the Reduced Amount) imposition of any tax, penalty or interest thereunder), pursuant to this Section 6 shall be made in good faith by nationally recognized registered public accountants or tax counsel experienced in making Section 280G calculations selected by the Company at the Company’s expense (the “Determination”), which shall provide such Determination with detailed supporting calculations and shall notify the Executive promptly of such election. Unless documentation to the Company and Executive within ten (10) business days of the Executive otherwise agree in writingdate of termination of the Executive’s employment, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control if applicable, or such other person time as reasonably requested by the Company or entity Executive. Unless Executive provides written notice to which the parties mutually agree Company within ten (10) business days of the “Firm”)delivery of the Determination to Executive that he disputes such Determination, whose determination will the Determination shall be binding, final and conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5Executive.

Appears in 1 contract

Samples: Employment Agreement (Digitalglobe, Inc.)

Golden Parachute Limitation. Notwithstanding anything herein to the contrarycontrary in this Agreement, to if the extent any amount to be paid or benefit to be provided aggregate of all termination payments described in Section 7 of this Agreement and the vesting acceleration of options granted to the Executive pursuant to this Agreement by the Company, whether under the terms of the Amended and Restated 1994 Stock Option Plan or otherwise (collectively, the “Parachute Payments”) would be treated as an “excess parachute payment,” as that phrase is defined in ), valued according to Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts and benefits the Executive would otherwise receive shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this section, the “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be nondeductible by the Company because of Section 280G or subjecting subject the Executive to an excise tax under Section 4999 of the Code. The Company , the Executive, in his sole discretion, may elect which and how much reduce or reject any portion of the Parachute Payments shall be eliminated or so that the present value of such reduced Parachute Payments (as long as after such election determined in accordance with Sections 280G of the Code) has the greatest aggregate present value without being subject to tax under Section 4999 of the Payments equals Code (the “Reduced Amount”). In the application of the preceding paragraph of this Section 7.4, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement which should not have been so paid or distributed (“Overpayment”) or that additional amounts which will not have been paid or distributed by the Company to or for the benefit of the Executive pursuant to the preceding paragraph of this Section 7.4 could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Reduced Amount) and shall notify . In the event it is determined that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of the Executive promptly of such election. Unless will be treated for all purposes as a loan by the Company and to the Executive, which loan shall be repaid by the Executive otherwise agree in writingupon demand together with interest calculated at the lowest interest rate authorized for such loans under the Code without a requirement that further interest be imputed. In the event it is determined that an Underpayment has occurred, any such Underpayment will be promptly paid by the Company to or for the benefit of the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. The determination required under of Overpayment or Underpayment, as the case may be, for purposes of this Section 5 will 7.4 shall be made in writing subject to the reasonable confirmation by the Company’s independent tax counsel or certified public accountants immediately prior to accounting firm, which shall be consistent with controlling precedent, substantial authority or assertions of any deficiency by the Internal Revenue Service in this matter for which such counsel or firm believes there is a Change high probability of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5success.

Appears in 1 contract

Samples: Employment Agreement (Ostex International Inc /Wa/)

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments(as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the amounts and benefits the Executive would otherwise receive Payments shall be either: either (a) paid or allowed delivered in full; or , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt by Employee, on an after-tax basis basis, of the greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 26, such Payments shall be eliminated or reduced (such that the reduction of compensation to be provided to Employee as long as after such election the aggregate present value a result of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will 26 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 26 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.

Appears in 1 contract

Samples: Employment Agreement (U.S. Gold Corp.)

Golden Parachute Limitation. Notwithstanding anything herein to (a) In the contrary, to event that the extent any amount to be paid or benefit to be provided to independent auditors most recently selected by the Executive pursuant to this Agreement or otherwise Board (collectively, the “PaymentsAuditors”) determine that any payment by the Company to or for the benefit of the RSA Holder would be treated as an nondeductible by the Company for federal income tax purposes because of the provisions concerning “excess parachute payment,paymentsas that phrase is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts and benefits total amount of all payments by the Executive would otherwise receive Company shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this section, the The “Reduced Amount” shall be an the amount expressed in present value which that maximizes the aggregate present value total amount of all Payments the payments without causing any Payment payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The . (b) If the Auditors determine that any payment by the Company would be nondeductible by the Company because of Section 280G of the Code, then the Company shall promptly give the RSA Holder notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the RSA Holder may elect then elect, in his or her sole discretion and in compliance with the requirements of Section 409A of the Code, which and how much of the Payments payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments payments equals the Reduced Amount) and shall advise the Company in writing of his or her election within ten days of receipt of notice. If no such election is made by the RSA Holder within such ten-day period, then the Company may elect which and how much of the payments shall be eliminated or reduced (as long as after such election the aggregate present value of the payments equals the Reduced Amount) and shall notify the Executive RSA Holder promptly of such election. Unless All determinations made by the Auditors shall be binding upon the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will RSA Holder and shall be made within 60 days of the date when a payment becomes payable. (c) As a result of uncertainty in writing the application of Section 280G of the Code at the time of an initial determination by the Company’s independent public accountants immediately prior to a Change of Control Auditors hereunder, it is possible that payments will have been made by the Company that should not have been made (an “Overpayment”) or such other person or entity to which that additional payments that will not have been made by the parties mutually agree Company could have been made (the an FirmUnderpayment”), whose determination will be conclusive and binding consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Auditors, based upon the Executive and assertion of a deficiency by the Internal Revenue Service against the Company or the RSA Holder that the Auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the RSA Holder which he or she shall repay to the Company. For purposes , together with interest at the applicable federal rate provided in Section 7872(f)(2) of making the calculations required Code; provided, however, that no amount shall be payable by this the RSA Holder to the Company if and to the extent that such payment would not reduce the amount subject to taxation under Section 5, the 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. The Company and the Executive will furnish Code or to the Firm extent that such information and documents as loan would be prohibited under Section 402 of the Firm may reasonably request Xxxxxxxx-Xxxxx Act of 2002. In the event that the Auditors determine that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by the Company to or for the benefit of the RSA Holder, together with interest at the applicable federal rate provided in order to make a determination under this Section. The Company will bear all costs Section 7872(f)(2) of the Firm may incur in connection with any calculations contemplated by this Section 5Code.

Appears in 1 contract

Samples: Restricted Stock Agreement (Graham Corp)

AutoNDA by SimpleDocs

Golden Parachute Limitation. Notwithstanding anything herein any other provision of this Agreement, in the event that it shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary, to the extent any amount to be paid or benefit to be provided to the Executive pursuant to terms of this Agreement or otherwise (collectively, the “Payments”) would be treated as an ), constitute “excess parachute payment,payments(as that phrase such term is defined in under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then the amounts and benefits the Executive would otherwise receive Payments shall be either: either (a) paid or allowed delivered in full; or , or (b) reduced (but not below zero) delivered to such lesser extent that would result in no portion of the Payments being subject to the Reduced AmountExcise Tax, whichever of the foregoing amounts, taking into account the applicable federalFederal, state or local income and local incomeemployment taxes and the Excise Tax, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the receipt by Executive’s receipt , on an after-tax basis basis, of the greatest amount of Paymentsbenefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. For purposes of this section, In the “Reduced Amount” shall be an amount expressed in present value which maximizes event that the aggregate present value of all Payments without causing any Payment are to be nondeductible by the Company because of reduced pursuant to this Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the 6, such Payments shall be eliminated or reduced (such that the reduction of compensation to be provided to Executive as long as after such election the aggregate present value a result of the Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will 13 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 10 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the 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. The Company and the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.

Appears in 1 contract

Samples: Executive Employment Agreement (HealthTalk Live, Inc.)

Golden Parachute Limitation. Notwithstanding anything herein to (a) In the contrary, to event that the extent any amount to be paid or benefit to be provided to independent auditors most recently selected by the Executive pursuant to this Agreement or otherwise Board (collectively, the “PaymentsAuditors”) determine that any payment by the Company to or for the benefit of the Participant would be treated as an nondeductible by the Company for federal income tax purposes because of the provisions concerning “excess parachute payment,paymentsas that phrase is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts and benefits total amount of all payments by the Executive would otherwise receive Company shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this section, the The “Reduced Amount” shall be an the amount expressed in present value which that maximizes the aggregate present value total amount of all Payments the payments without causing any Payment payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The . (b) If the Auditors determine that any payment by the Company would be nondeductible by the Company because of Section 280G of the Code, then the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Participant may elect then elect, in his or her sole discretion and in compliance with the requirements of Section 409A of the Code, which and how much of the Payments payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments payments equals the Reduced Amount) and shall advise the Company in writing of his or her election within ten days of receipt of notice. If no such election is made by the Participant within such 10-day period, then the Company may elect which and how much of the payments shall be eliminated or reduced (as long as after such election the aggregate present value of the payments equals the Reduced Amount) and shall notify the Executive Participant promptly of such election. Unless All determinations made by the Auditors shall be binding upon the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will Participant and shall be made within 60 days of the date when a payment becomes payable. (c) As a result of uncertainty in writing the application of Section 280G of the Code at the time of an initial determination by the Company’s independent public accountants immediately prior to a Change of Control Auditors hereunder, it is possible that payments will have been made by the Company that should not have been made (an “Overpayment”) or such other person or entity to which that additional payments that will not have been made by the parties mutually agree Company could have been made (the an FirmUnderpayment”), whose determination will be conclusive and binding consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Auditors, based upon the Executive and assertion of a deficiency by the Internal Revenue Service against the Company or the Participant that the Auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Participant which he or she shall repay to the Company. For purposes , together with interest at the applicable federal rate provided in Section 7872(f)(2) of making the calculations required Code; provided, however, that no amount shall be payable by this the Participant to the Company if and to the extent that such payment would not reduce the amount subject to taxation under Section 5, the 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. The Company and the Executive will furnish Code or to the Firm extent that such information and documents as loan would be prohibited under Section 402 of the Firm may reasonably request Sxxxxxxx-Xxxxx Act of 2002. In the event that the Auditors determine that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by the Company to or for the benefit of the Participant, together with interest at the applicable federal rate provided in order to make a determination under this Section. The Company will bear all costs Section 7872(f)(2) of the Firm may incur in connection with any calculations contemplated by this Section 5Code.

Appears in 1 contract

Samples: Restricted Stock Unit Agreement (Graham Corp)

Golden Parachute Limitation. Notwithstanding anything herein (i) In the event that the independent auditors most recently selected by the Board (the “Auditors”) determine that any payment by the Company under this Section 9(d) to or for the contrary, to the extent any amount to be paid or benefit to be provided to of the Executive pursuant to this Agreement or otherwise (collectively, the “Payments”) would be treated as an “excess parachute payment,” as that phrase is defined in nondeductible by the Company for federal income tax purposes because of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts and benefits the Executive would otherwise receive shall total amount of all payments under this Section 9(d) will be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this sectionSection 9(d), the “Reduced Amount” shall will be an the maximum payment amount expressed in present value which maximizes the aggregate present value of all Payments without causing that does not cause any Payment payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The . (ii) If the Auditors determine that any payment under this Section 9(d) would be nondeductible by the Company because of Section 280G of the Code, then the Company will promptly give the Executive notice to that effect and a copy of the detailed calculation thereof and the Reduced Amount, and the Executive may elect then elect, in his sole discretion, which and how much of the Payments shall payments will be eliminated or reduced (as long as after such election the aggregate present value of the Payments payments equals the Reduced Amount) and shall will advise the Company in writing of his election within ten days of receipt of notice. If no such election is made by the Executive within such ten-day period, then the Company may elect which and how much of the payments under this Section 9(d) will be eliminated or reduced (as long as after such election the aggregate present value of the payments equals the Reduced Amount) and will notify the Executive promptly of such election. Unless All determinations made by the Auditors under this Section 9(d) will be binding upon the Company and the Executive otherwise agree in writing, any determination required under this Section 5 and will be made within 60 days of the date when a payment becomes payable. As a result of uncertainty in writing the application of Section 280G of the Code at the time of an initial determination by the Company’s independent public accountants immediately prior to a Change of Control Auditors, it is possible that payments will have been made by the Company that should not have been made (an “Overpayment”) or such other person or entity to which that additional payments that will not have been made by the parties mutually agree Company could have been made (the an FirmUnderpayment”), whose determination consistent in each case with the calculation of the Reduced Amount. In the event that the Auditors determine that an Overpayment has been made based upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive that the Auditors believe has a high probability of success, such Overpayment will be conclusive and binding upon treated for all purposes as a loan to the Executive and which he or she will repay to the Company. For purposes , together with interest at the applicable federal rate provided in Section 7872(f)(2) of making the calculations required Code; provided, however, that no amount will be payable by this the Executive to the Company if and to the extent that such payment would not reduce the amount subject to taxation under Section 5, the 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. The In the event that the Auditors determine that an Underpayment has occurred, such Underpayment will promptly be paid or transferred by the Company and to or for the Executive will furnish to benefit of the Firm such information and documents as Executive, together with interest at the Firm may reasonably request applicable federal rate provided in order to make a determination under this Section. The Company will bear all costs Section 7872(f)(2) of the Firm may incur in connection with any calculations contemplated by this Section 5Code.

Appears in 1 contract

Samples: Employment Agreement (Graham Corp)

Golden Parachute Limitation. Notwithstanding anything herein to (a) In the contrary, to event that the extent any amount to be paid or benefit to be provided to independent auditors most recently selected by the Executive pursuant to this Agreement or otherwise Board (collectively, the “PaymentsAuditors”) determine that any payment by the Company to or for the benefit of the Participant would be treated as an nondeductible by the Company for federal income tax purposes because of the provisions concerning “excess parachute payment,paymentsas that phrase is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts and benefits total amount of all payments by the Executive would otherwise receive Company shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this section, the The “Reduced Amount” shall be an the amount expressed in present value which that maximizes the aggregate present value total amount of all Payments the payments without causing any Payment payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The . (b) If the Auditors determine that any payment by the Company would be nondeductible by the Company because of Section 280G of the Code, then the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Participant may elect then elect, in his or her sole discretion and in compliance with the requirements of Section 409A of the Code, which and how much of the Payments payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments payments equals the Reduced Amount) and shall advise the Company in writing of his or her election within ten days of receipt of notice. If no such election is made by the Participant within such 10-day period, then the Company may elect which and how much of the payments shall be eliminated or reduced (as long as after such election the aggregate present value of the payments equals the Reduced Amount) and shall notify the Executive Participant promptly of such election. Unless All determinations made by the Auditors shall be binding upon the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will Participant and shall be made within 60 days of the date when a payment becomes payable. (c) As a result of uncertainty in writing the application of Section 280G of the Code at the time of an initial determination by the Company’s independent public accountants immediately prior to a Change of Control Auditors hereunder, it is possible that payments will have been made by the Company that should not have been made (an “Overpayment”) or such other person or entity to which that additional payments that will not have been made by the parties mutually agree Company could have been made (the an FirmUnderpayment”), whose determination will be conclusive and binding consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Auditors, based upon the Executive and assertion of a deficiency by the Internal Revenue Service against the Company or the Participant that the Auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Participant which he or she shall repay to the Company. For purposes , together with interest at the applicable federal rate provided in Section 7872(f)(2) of making the calculations required Code; provided, however, that no amount shall be payable by this the Participant to the Company if and to the extent that such payment would not reduce the amount subject to taxation under Section 5, the 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. The Company and the Executive will furnish Code or to the Firm extent that such information and documents as loan would be prohibited under Section 402 of the Firm may reasonably request Sxxxxxxx-Xxxxx Act of 2002. In the event that the Auditors determine that an Underpayment has occurred, such 6 Underpayment shall promptly be paid or transferred by the Company to or for the benefit of the Participant, together with interest at the applicable federal rate provided in order to make a determination under this Section. The Company will bear all costs Section 7872(f)(2) of the Firm may incur in connection with any calculations contemplated by this Section 5Code.

Appears in 1 contract

Samples: Restricted Stock Unit Agreement (Graham Corp)

Golden Parachute Limitation. Notwithstanding anything herein to (a) In the contrary, to event that the extent any amount to be paid or benefit to be provided to independent auditors most recently selected by the Executive pursuant to this Agreement or otherwise Board (collectively, the “PaymentsAuditors”) determine that any payment by the Company to or for the benefit of the Participant would be treated as an nondeductible by the Company for federal income tax purposes because of the provisions concerning “excess parachute payment,paymentsas that phrase is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts and benefits total amount of all payments by the Executive would otherwise receive Company shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this section, the The “Reduced Amount” shall be an the amount expressed in present value which that maximizes the aggregate present value total amount of all Payments the payments without causing any Payment payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The . (b) If the Auditors determine that any payment by the Company would be nondeductible by the Company because of Section 280G of the Code, then the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Participant may elect then elect, in his or her sole discretion and in compliance with the requirements of Section 409A of the Code, which and how much of the Payments payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments payments equals the Reduced Amount) and shall advise the Company in writing of his or her election within ten days of receipt of notice. If no such election is made by the Participant within such 10-day period, then the Company may elect which and how much of the payments shall be eliminated or reduced (as long as after such election the aggregate present value of the payments equals the Reduced Amount) and shall notify the Executive Participant promptly of such election. Unless All determinations made by the Auditors shall be binding upon the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will Participant and shall be made within 60 days of the date when a payment becomes payable. (c) As a result of uncertainty in writing the application of Section 280G of the Code at the time of an initial determination by the Company’s independent public accountants immediately prior to a Change of Control Auditors hereunder, it is possible that payments will have been made by the Company that should not have been made (an “Overpayment”) or such other person or entity to which that additional payments that will not have been made by the parties mutually agree Company could have been made (the an FirmUnderpayment”), whose determination will be conclusive and binding consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Auditors, based upon the Executive and assertion of a deficiency by the Internal Revenue Service against the Company or the Participant that the Auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Participant which he or she shall repay to the Company. For purposes , together with interest at the applicable federal rate provided in Section 7872(f)(2) of making the calculations required Code; provided, however, that no amount shall be payable by this the Participant to the Company if and to the extent that such payment would not reduce the amount subject to taxation under Section 5, the 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. The Company and the Executive will furnish Code or to the Firm extent that such information and documents as loan would be prohibited under Section 402 of the Firm may reasonably request Xxxxxxxx-Xxxxx Act of 2002. In the event that the Auditors determine that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by the Company to or for the benefit of the Participant, together with interest at the applicable federal rate provided in order to make a determination under this Section. The Company will bear all costs Section 7872(f)(2) of the Firm may incur in connection with any calculations contemplated by this Section 5Code.

Appears in 1 contract

Samples: Restricted Stock Unit Agreement (Graham Corp)

Golden Parachute Limitation. Notwithstanding anything herein to (a) In the contrary, to event that the extent any amount to be paid or benefit to be provided to independent auditors most recently selected by the Executive pursuant to this Agreement or otherwise Board (collectively, the “PaymentsAuditors”) determine that any payment by the Company to or for the benefit of the Participant would be treated as an nondeductible by the Company for federal income tax purposes because of the provisions concerning “excess parachute payment,paymentsas that phrase is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts and benefits total amount of all payments by the Executive would otherwise receive Company shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this section, the The “Reduced Amount” shall be an the amount expressed in present value which that maximizes the aggregate present value total amount of all Payments the payments without causing any Payment payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The . (b) If the Auditors determine that any payment by the Company would be nondeductible by the Company because of Section 280G of the Code, then the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Participant may elect then elect, in his or her sole discretion and in compliance with the requirements of Section 409A of the Code, which and how much of the Payments payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments payments equals the Reduced Amount) and shall advise the Company in writing of his or her election within ten days of receipt of notice. If no such election is made by the Participant within such 10-day period, then the Company may elect which and how much of the payments shall be eliminated or reduced (as long as after such election the aggregate present value of the payments equals the Reduced Amount) and shall notify the Executive Participant promptly of such election. Unless All determinations made by the Auditors shall be binding upon the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will Participant and shall be made within 60 days of the date when a payment becomes payable. (c) As a result of uncertainty in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Code at the time of an initial determination by the Auditors hereunder, it is possible that payments will have been made by the Company and that should not have been made (an “Overpayment”) or that additional payments that will not have been made by the Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.could have been made (an

Appears in 1 contract

Samples: Restricted Stock Unit Agreement (Graham Corp)

Golden Parachute Limitation. Notwithstanding anything herein to (a) In the contrary, to event that the extent any amount to be paid or benefit to be provided to independent auditors most recently selected by the Executive pursuant to this Agreement or otherwise Board (collectively, the “PaymentsAuditors”) determine that any payment by the Company to or for the benefit of the RSA Holder would be treated as an nondeductible by the Company for federal income tax purposes because of the provisions concerning “excess parachute payment,paymentsas in Section 280G of the Code, then the total amount of all payments by the Company shall be reduced (but not below zero) to the Reduced Amount. The “Reduced Amount” shall be the amount that phrase is defined in maximizes the total amount of the payments without causing any payment to be nondeductible by the Company because of Section 280G of the Code. (b) If the Auditors determine that any payment by the Company would be nondeductible by the Company because of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts Company shall promptly give the RSA Holder notice to that effect and benefits a copy of the Executive would otherwise receive shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to detailed calculation thereof and of the Reduced Amount, whichever and the RSA Holder may then elect, in his or her sole discretion and in compliance with the requirements of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 409A of the Code) results in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this section, the “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the Payments payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments payments equals the Reduced Amount) and shall advise the Company in writing of his or her election within ten days of receipt of notice. If no such election is made by the RSA Holder within such ten-day period, then the Company may elect which and how much of the payments shall be eliminated or reduced (as long as after such election the aggregate present value of the payments equals the Reduced Amount) and shall notify the Executive RSA Holder promptly of such election. Unless All determinations made by the Auditors shall be binding upon the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will RSA Holder and shall be made within 60 days of the date when a payment becomes payable. (c) As a result of uncertainty in writing the application of Section 280G of the Code at the time of an initial determination by the Company’s independent public accountants immediately prior to a Change of Control Auditors hereunder, it is possible that payments will have been made by the Company that should not have been made (an “Overpayment”) or such other person or entity to which that additional payments that will not have been made by the parties mutually agree Company could have been made (the an FirmUnderpayment”), whose determination will be conclusive and binding consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Auditors, based upon the Executive and assertion of a deficiency by the Internal Revenue Service against the Company or the RSA Holder that the Auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the RSA Holder which he or she shall repay to the Company. For purposes , together with interest at the applicable federal rate provided in Section 7872(f)(2) of making the calculations required Code; provided, however, that no amount shall be payable by this the RSA Holder to the Company if and to the extent that such payment would not reduce the amount subject to taxation under Section 5, the 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. The Company and the Executive will furnish Code or to the Firm extent that such information and documents as loan would be prohibited under Section 402 of the Firm may reasonably request Xxxxxxxx-Xxxxx Act of 2002. In the event that the Auditors determine that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by the Company to or for the benefit of the RSA Holder, together with interest at the applicable federal rate provided in order to make a determination under this Section. The Company will bear all costs Section 7872(f)(2) of the Firm may incur in connection with any calculations contemplated by this Section 5Code.

Appears in 1 contract

Samples: Restricted Stock Agreement (Graham Corp)

Golden Parachute Limitation. (a) Notwithstanding anything herein to any other provision of this agreement, if it is determined that any portion of the contrary, to the extent termination payments set forth in Section 12 or any amount other payment or benefit that is required to be paid or benefit to be provided to or for the benefit of the Executive pursuant to under this Agreement agreement, or otherwise (collectivelyunder any other plan, agreement with other arrangement with the “Payments”) would be treated as an “excess parachute payment,” as that phrase is defined Company, any person whose actions result in a change described in Section 280G 280G(b)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the "Code"), then or any person affiliated with the amounts and benefits Company or such person (each a "Payment" and, collectively, "Total Payments"), would constitute an "excess parachute payment," within the Executive would otherwise receive shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) meaning of Section 280G of the Code that is subject to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under by Section 4999 of the CodeCode or similar or successor provision (the "Excise Tax") results in if so paid or provided, then the Executive’s receipt on an after-tax basis Total Payments to be made to or for the benefit of the greatest amount of Payments. For purposes of this section, the “Reduced Amount” Executive shall be an amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election that the aggregate present value of the Total Payments equals shall be one dollar ($1.00) less than the Reduced Amount) and shall notify maximum amount that the Executive promptly may receive without becoming subject to the Excise Tax (the "Reduction"); provided that the Reduction shall not apply if the after-tax value to the Executive of such election. Unless the Total Payments prior to the Reduction is greater than the after-tax value to the Executive if Total Payments are determined taking into account the Reduction. (b) Within forty (40) days following delivery of the notice of termination or notice by the Company to the Executive of its belief that there is a Payment that may be treated as an excess parachute payment, the Company, at its expense, shall obtain the opinion (which need not be unqualified) of tax counsel ("Tax Counsel") selected by the Company and reasonably acceptable to Executive, which opinion sets forth (i) the Executive otherwise agree in writingamount of the Executive's base amount, any determination required under this Section 5 will be made in writing by (ii) the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon the Executive amount and the Companyaggregate present value of Total Payments, (iii) the aggregate amount of excess parachute payments determined without regard to the Reduction, (iv) the after-tax value of the Total Payments if the Reduction did not apply, and (v) the after-tax value of the Total Payments taking into account the Reduction. For purposes of making the its calculations required by and determinations under this Section 511(b), the Firm Tax Counsel may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will shall furnish to the Firm Tax Counsel with such information and documents as the Firm Tax Counsel may reasonably request to assist Tax Counsel in order to make a determination making calculations and determinations under this SectionSection 11(b). (c) For purposes of determining the after-tax value of Total Payments, (i) there shall be taken into account any Excise Tax, (ii) Executive shall be deemed to pay all applicable federal income taxes at the highest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the Total Payments are to be made and the highest rate or rates of all applicable state and local income taxes in the state and locality of the Executive's domicile for state and local income tax purposes for the taxable year in which the Total Payments will be made, provided that the state and local income tax rate shall be determined assuming that such taxes are fully deductible for federal income tax purposes, and (iii) the Executive shall be deemed to pay applicable federal employment taxes at the applicable rate under Section 3101(b) of the Code. The opinion of Tax Counsel shall be dated as of the date of the Executive's termination and addressed to the Company will bear all costs and the Firm may incur Executive and shall be binding upon the Company and the Executive. If such opinion determines that there would be an excess parachute payment under Section 280G of the Code and that the after-tax value of the Total Payments taking into account the Reduction is greater than the after-tax value of the Total Payments if the Reduction did not apply, then the payments hereunder or any other payment or benefit determined by such counsel to be includible in connection with any calculations contemplated by this Section 5Total Payments shall be reduced or eliminated as the Company shall reasonably determine.

Appears in 1 contract

Samples: Employment Agreement (Pyramid Breweries Inc)

Golden Parachute Limitation. Notwithstanding anything herein (i) In the event that the independent auditors most recently selected by the Board (the “Auditors”) determine that any payment by the Company under this Section 9(d) to or for the contrary, to the extent any amount to be paid or benefit to be provided to of the Executive pursuant to this Agreement or otherwise (collectively, the “Payments”) would be treated as an nondeductible by the Company for federal income tax purposes because of the provisions concerning “excess parachute payment,paymentsas that phrase is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts and benefits the Executive would otherwise receive total amount of all payments under this Section 9(d) shall be either: (a) paid or allowed in full; or (b) reduced (but not below zero) to the Reduced Amount, whichever of the foregoing amounts, taking into account the applicable federal, state and local income, employment and excise taxes (including, without limitation, the excise tax imposed upon the Executive under Section 4999 of the Code) results in the Executive’s receipt on an after-tax basis of the greatest amount of Payments. For purposes of this sectionSection 9(d), the “Reduced Amount” shall be an the amount expressed in present value which that maximizes the aggregate present value total amount of all Payments the payments without causing any Payment payment to be nondeductible by the Company because of Section 280G or subjecting the Executive to an excise tax under Section 4999 of the Code. The . (ii) If the Auditors determine that any payment under this Section 9(d) would be nondeductible by the Company because of Section 280G of the Code, then the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Executive may elect then elect, in his sole discretion, which and how much of the Payments payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten days of receipt of notice. If no such election is made by the Executive within such ten-day period, then the Company may elect which and how much of the payments under this Section 9(d) shall be eliminated or reduced (as long as after such election the aggregate present value of the payments equals the Reduced Amount) and shall notify the Executive promptly of such election. Unless All determinations made by the Auditors under this Section 9(d) shall be binding upon the Company and the Executive otherwise agree in writing, any determination required under this Section 5 will and shall be made within 60 days of the date when a payment becomes payable. (iii) As a result of uncertainty in writing the application of Section 280G of the Code at the time of an initial determination by the Company’s independent public accountants immediately prior to a Change of Control Auditors hereunder, it is possible that payments will have been made by the Company that should not have been made (an “Overpayment”) or such other person or entity to which that additional payments that will not have been made by the parties mutually agree Company could have been made (the an FirmUnderpayment”), whose determination will be conclusive and binding consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Auditors, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive and that the Auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Executive which he or she shall repay to the Company. For purposes , together with interest at the applicable federal rate provided in Section 7872(f)(2) of making the calculations required Code; provided, however, that no amount shall be payable by this the Executive to the Company if and to the extent that such payment would not reduce the amount subject to taxation under Section 5, the 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. The In the event that the Auditors determine that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by the Company and to or for the Executive will furnish to benefit of the Firm such information and documents as Executive, together with interest at the Firm may reasonably request applicable federal rate provided in order to make a determination under this Section. The Company will bear all costs Section 7872(f)(2) of the Firm may incur in connection with any calculations contemplated by this Section 5Code.

Appears in 1 contract

Samples: Employment Agreement (Graham Corp)

Draft better contracts in just 5 minutes Get the weekly Law Insider newsletter packed with expert videos, webinars, ebooks, and more!