Common use of Golden Parachute Payments Clause in Contracts

Golden Parachute Payments. (a) In the event that any payment received or to be received by Executive pursuant to this Agreement or otherwise (“Payment”) would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax (such excise tax, together with any interest and penalties, is hereinafter collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive an additional payment from the Company (“Gross-Up Payment”) in such an amount that after the payment of all taxes (including, without limitation, any interest and penalties on such taxes and the Excise Tax) on the Payment and on the Gross-Up Payment, Executive shall retain an amount equal to (a) the Payment minus (b) all applicable taxes on the Payment other than the Excise Tax. The intent of the parties is that the Company shall be solely responsible for, and shall pay, any Excise Tax on the Payment and Gross-Up Payment and any income, employment and other taxes (including, without limitation, penalties and interest) imposed on the Gross-Up Payment (as well as any loss of tax deduction caused by the Payment or the Gross-Up Payment). Notwithstanding the foregoing, in the event that Excise Taxes could be avoided by a reduction in payments to Executive pursuant to this Agreement, the Company may reduce such payments to bring the total payments to that amount that falls immediately below the threshold triggering the Excise Tax, up to a total reduction not to exceed $25,000. Any reduction in payments and/or benefits required by this Section 5.7 shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to the Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for the Executive’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. Executive in no event will have any discretion regarding the ordering of any reduction in payments or benefits. Any Gross-Up Payment under this Agreement shall be made with thirty (30) days following the date in which the related taxes are remitted to the taxing authorities by Executive.

Golden Parachute Payments. (a) In the event that any payment received or to be received by Executive pursuant to this Agreement agreement or otherwise would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (a “Parachute Payment”) would ), and but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax Code (such excise tax, together with any interest and penalties, is hereinafter collectively referred to as the “Section 4999 Excise Tax”), then the Company will make best efforts to obtain shareholder approval for such payment in accordance with Section 280G(b)(5) and its regulations, if applicable. If shareholder approval of the Parachute Payment is not solicited, then Executive may elect (prior to the date the Parachute Payment would be triggered) to have such Parachute Payment equal to a reduced amount. Such reduced amount shall be entitled calculated as either (i) the largest portion of the Parachute Payment that would result in no portion of the Parachute Payment being subject to receive an additional payment from the Company Excise Tax or (“Gross-Up ii) the largest portion, up to and including the total, of the Parachute Payment”) in such an amount that , whichever amount, after the payment of taking into account all taxes (includingapplicable federal, without limitationstate and local employment taxes, any interest and penalties on such taxes income taxes, and the Excise Tax) Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, of the greater amount of the Parachute Payment notwithstanding that all or some portion of the Payment and on the Gross-Up Payment, Executive shall retain an amount equal may be subject to (a) the Payment minus (b) all applicable taxes on the Payment other than the Excise Tax. The intent of the parties is that the Company shall be solely responsible for, and shall pay, any Excise Tax on the Payment and Gross-Up Payment and any income, employment and other taxes (including, without limitation, penalties and interest) imposed on the Gross-Up Payment (as well as any loss of tax deduction caused by the Payment or the Gross-Up Payment). Notwithstanding the foregoing, in the event that Excise Taxes could be avoided by If a reduction in payments to Executive pursuant to this Agreementor benefits constituting “parachute payments” is necessary so that the Parachute Payment equals the reduced amount, the Company may reduce such payments to bring the total payments to that amount that falls immediately below the threshold triggering the Excise Tax, up to a total reduction not to exceed $25,000. Any reduction in payments and/or benefits required by this Section 5.7 shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock optionsawards, if applicable; and (4) reduction of other benefits paid employee benefits. The accounting firm engaged by the Company (or its successor) for general tax purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the Executive. In the event that acceleration of vesting of equity award compensation is determinations by such accounting firm required to be reducedmade hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Executive and to the Company within fifteen (15) calendar days prior to the date on which Executive's right to a Payment is triggered (if requested at that time by Executive or the Company) or such acceleration other time as requested. Any good faith determinations of vesting the accounting firm made hereunder shall be cancelled in final, binding and conclusive upon Executive and the reverse order of the date of grant for the Executive’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. Executive in no event will have any discretion regarding the ordering of any reduction in payments or benefits. Any Gross-Up Payment under this Agreement shall be made with thirty (30) days following the date in which the related taxes are remitted to the taxing authorities by ExecutiveCompany.

Golden Parachute Payments. (a) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment received payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) to be received by or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise otherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable federal, state, local interest or foreign penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, is are hereinafter collectively referred to as the “Excise Tax”), then Executive such Payments shall either (a) be entitled delivered in full, or (b) subject to, and in a manner consistent with the requirements of Section 409A of the Code, be reduced to receive an additional payment from the Company (“Gross-Up Payment”) in such an amount minimum extent necessary to ensure that after no portion thereof will be subject to the payment Excise Tax, whichever of all taxes (includingthe foregoing amounts, without limitationtaking into account the applicable federal, any interest state or local income and penalties on such employment taxes and the Excise Tax) , results in receipt by Executive, on an after-tax basis, of the Payment and on the Gross-Up Paymentgreatest amount of benefits, Executive shall retain an amount equal notwithstanding that all or some portion of such benefits may be subject to (a) the Payment minus (b) all applicable taxes on the Payment other than the Excise Tax. The intent of the parties is that the Company shall be solely responsible for, and shall pay, any Excise Tax on the Payment and Gross-Up Payment and any income, employment and other taxes (including, without limitation, penalties and interest) imposed on the Gross-Up Payment (as well as any loss of tax deduction caused by the Payment or the Gross-Up Payment). Notwithstanding the foregoing, in the event that Excise Taxes could be avoided by a reduction in payments to Executive pursuant to this Agreement, the Company may reduce such payments to bring the total payments to that amount that falls immediately below the threshold triggering the Excise Tax, up to a total reduction not to exceed $25,000. Any reduction in payments and/or benefits required by this Section 5.7 shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to the Executive. In the event that acceleration of vesting of equity award compensation is any Payments are to be reducedreduced pursuant to this Section 6(f), such acceleration of vesting then the reduction shall be cancelled in the reverse order of the date of grant applied as follows: (i) first, on a pro rata basis to Executive’s cash severance payments and his pro rata annual cash incentive award payment for the year of termination, (ii) second, on a pro rata basis to Executive’s equity awardsincentive awards and (iii) third, to Executive’s benefits under the Executive Capital Accumulation Plan. If two or more equity awards are granted on the same date, each award will The determinations to be reduced on a pro-rata basis. Executive in no event will have any discretion regarding the ordering of any reduction in payments or benefits. Any Gross-Up Payment under made with respect to this Agreement Section 6(f) shall be made with thirty by a qualified accounting or legal professional firm (30the “Tax Professional”) days following jointly selected by the date in which Company and Executive and paid by the related taxes are remitted Company. The Tax Professional shall be a nationally recognized United States public accounting or law firm. If Executive and the Company cannot agree on the firm to serve as the taxing authorities Tax Professional, then Executive and the Company shall each select one such firm and those two firms shall jointly select such a different firm to serve as the Tax Professional. Absent manifest error, the determinations by the Tax Professional shall be binding upon the Company and Executive.

Golden Parachute Payments. (a) In the event that any payment received or to be received by Executive pursuant to this Agreement or otherwise but determined without regard to any additional payments required under this Section 4.4 (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this subsection (a), be subject to the excise tax imposed by Section 4999 of the Code, or any comparable federal, state, local or foreign excise tax (such excise tax, together with any interest and penalties, is hereinafter collectively referred to as the “Excise Tax”), then then, subject to the provisions of subsection (c) hereof, Executive shall be entitled to receive an additional payment from the Company (the “Gross-Up Payment”) in such an amount that after the payment of all taxes (including, including without limitation, any interest and penalties on such taxes and the Excise Tax) on the Payment and on the Gross-Up Payment, Executive shall retain an amount equal to (a) the Payment minus (b) all applicable taxes on the Payment other than (excluding the Excise Tax). Notwithstanding the foregoing, Executive shall not be entitled to receive a Gross-Up Payment if (1) the Payments may be reduced by an amount sufficient to result in no portion of the Payment retained by Executive being subject to the Excise Tax (“Reduced Amount”), taking into account all applicable federal, state, local and foreign income, employment and other taxes and (2) after reducing the Payment by such Reduced Amount, Executive would receive, on a pre-tax basis, an amount not less than ninety percent (90%) of the value of the unreduced Payment on a pre-tax basis (the “Threshold Payment Level”). The intent of the parties is that if Executive is entitled to a Gross-Up Payment pursuant to this Section 4.4, the Company shall be solely responsible for, and shall pay, any Excise Tax on the Payment and the Gross-Up Payment and any income, employment and other taxes (including, without limitation, penalties and interest) imposed on the any Gross-Up Payment (as well as Payment. The Company shall be responsible for any loss of tax deduction that the Company has to forego caused by the Payment or the Gross-Up Payment). Notwithstanding the foregoing, in the event that Excise Taxes could be avoided by a reduction in payments to Executive pursuant to this Agreement, the Company may reduce such payments to bring the total payments to that amount that falls immediately below the threshold triggering the Excise Tax, up to a total reduction not to exceed $25,000. Any reduction in payments and/or benefits required by this Section 5.7 shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to the Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for the Executive’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. Executive in no event will have any discretion regarding the ordering of any reduction in payments or benefits. Any Gross-Up Payment under up Payments pursuant to this Agreement Section 4.4 shall be made with thirty (30) days paid not later than the end of the taxable year following the date taxable year in which the related taxes are remitted to the taxing authorities by Executivedetermination under this Section 4.4 was made.

Golden Parachute Payments. (a) In Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any benefit received pursuant to this Agreement, including, without limitation, any excise tax imposed by Section 4999 of the event Internal Revenue Code of 1986, as amended (the "Code"); provided, however, that any payment benefit received or to be received by Executive pursuant in connection with a Change of Control ("Contract Benefits") or any other plan, arrangement or agreement with the Company or an affiliate (collectively with the Contract Benefits, the "Total Benefits") that would constitute a "parachute payment" within the meaning of Section 280G of the Code ("Covered Payments"), shall be reduced to this Agreement or otherwise (“Payment”) would the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, but only if, by reason of such reduction, the net after-tax benefit received by Executive as a result of such reduction shall exceed the net after-tax benefit received by Executive if no such reduction was made. For purposes of this Section 6, "net after-tax benefit" shall mean the Covered Payments that Executive receives or any comparable is then entitled to receive from the Company, less (i) the amount of all federal, statestate and local income and employment taxes payable by Executive with respect to such "Covered Payments," calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rates set forth in the Code as in effect at the time of the first receipt of the foregoing benefits), local and (ii) the amount of excise taxes imposed with respect to such "Covered Payments" by Section 4999 of the Code. (b) The accounting firm engaged by the Company (or foreign excise its successor) for general tax purposes shall perform any adjustment pursuant to subsection (a) of this Section 6. The Company shall bear all expenses with respect to the determinations by such excise taxaccounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with any interest detailed supporting documentation, to Executive and penaltiesto the Company within fifteen (15) calendar days of being engaged to perform such determination and adjustment, is hereinafter collectively referred to or at such other time as requested by the “Excise Tax”), then Executive Company. Any good faith determinations of the accounting firm made hereunder shall be entitled to receive an additional payment from the Company (“Gross-Up Payment”) in such an amount that after the payment of all taxes (includingfinal, without limitation, any interest binding and penalties on such taxes conclusive upon you and the Excise TaxCompany. (c) on Any reduction of the Payment Covered Payments in accordance with this Section 6 shall be made in accordance with Section 409A of the Code and on the Gross-Up Payment, Executive shall retain an amount equal to following: (ai) the Payment minus Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (bii) all applicable taxes on the Payment other than the Excise Tax. The intent of the parties is that the Company Covered Payments shall then be reduced as follows: (A) cash payments shall be solely responsible for, and shall pay, any Excise Tax on the Payment and Grossreduced before non-Up Payment and any income, employment and other taxes (including, without limitation, penalties and interest) imposed on the Gross-Up Payment (as well as any loss of tax deduction caused by the Payment or the Gross-Up Payment). Notwithstanding the foregoing, in the event that Excise Taxes could be avoided by a reduction in payments to Executive pursuant to this Agreement, the Company may reduce such payments to bring the total payments to that amount that falls immediately below the threshold triggering the Excise Tax, up to a total reduction not to exceed $25,000. Any reduction in payments and/or benefits required by this Section 5.7 shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4B) reduction of other benefits paid to the Executive. In the event that acceleration of vesting of equity award compensation is payments to be reduced, such acceleration of vesting made on a later payment date shall be cancelled in the reverse order of the date of grant for the Executive’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. Executive in no event will have any discretion regarding the ordering of any reduction in before payments or benefits. Any Gross-Up Payment under this Agreement shall to be made with thirty (30) days following the date in which the related taxes are remitted to the taxing authorities by Executiveon an earlier payment date. 7.

Golden Parachute Payments. (a) In the event it shall be determined that ------------------------- any payment received by the Company to or to be received by Executive pursuant to for the benefit of the Employee, whether paid or payable under this Agreement or otherwise but determined without regard to any additional payments required under this Section 6 (“a "Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any comparable federal, state, state or local or foreign excise tax (such excise tax, together with any interest and penalties, is are hereinafter collectively referred to as the “"Excise Tax”"), then Executive the Employee shall be entitled to receive an additional payment from the Company (“a "Gross-Up Payment”") in such an amount that after the payment of all taxes (including, without limitation, any interest and penalties on such taxes and the Excise Tax) on the Payment payment and on the Gross-Up Payment, Executive the Employee shall retain an amount equal to (a) the Payment minus (b) all applicable taxes on the Payment other than the Excise TaxPayment. The intent of the parties is that the Company shall be solely responsible for, and shall pay, any Excise Tax on the Payment and Gross-Up Payment and any income, income and employment and other taxes (including, including without limitation, penalties and interest) imposed on the any Gross-Up Payment (as well as any loss of tax deduction caused by the Payment or the Gross-Up Payment. Unless the Company and the Employee otherwise agree in writing, all determinations required to be made under this Section and the assumptions to be utilized in arriving at such determinations, shall be made in writing in good faith by the accounting firm serving as the Company's independent public accountants immediately prior to the event giving rise to such Payment (the "Accountants"). Notwithstanding For purposes of making the foregoing, in the event that Excise Taxes could be avoided by a reduction in payments to Executive pursuant to this Agreement, the Company may reduce such payments to bring the total payments to that amount that falls immediately below the threshold triggering the Excise Tax, up to a total reduction not to exceed $25,000. Any reduction in payments and/or benefits calculations required by this Section 5.7 6, the accountants may make reasonable assumptions and approximations concerning the application of Sections 280G and 4999 of the Code. The Company and the Employee shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid furnish to the Executive. In Accountants such information and documents as the event that acceleration of vesting of equity award compensation is Accountants may reasonably request to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for the Executive’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on make a pro-rata basis. Executive in no event will have any discretion regarding the ordering of any reduction in payments or benefits. Any Gross-Up Payment determination under this Agreement Section. The Company shall be made bear all costs the Accountants may reasonably incur in connection with thirty (30) days following the date in which the related taxes are remitted to the taxing authorities any calculations contemplated by Executivethis Section.

Golden Parachute Payments. (a) In the event it shall be determined that ------------------------- any payment received by the Company to or to be received by Executive pursuant to for the benefit of the Employee, whether paid or payable under this Agreement or otherwise but determined without regard to any additional payments required under this Section 6 (“a "Payment”) "), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any comparable federal, state, state or local or foreign excise tax (such excise tax, together with any interest and penalties, is hereinafter collectively referred to as the “"Excise Tax”"), then Executive the Employee shall be entitled to receive an additional payment from the Company (“a "Gross-Up Payment”") in such an amount that after the payment of all taxes (including, without limitation, any interest and penalties on such taxes and the Excise Tax) on the Payment payment and on the Gross-Up Payment, Executive the Employee shall retain an amount equal to (a) the Payment minus (b) all applicable taxes on the Payment other than the Excise TaxPayment. The intent of the parties is that the Company shall be solely responsible for, and shall pay, any Excise Tax on the Payment and Gross-Up Payment and any income, income and employment and other taxes (including, including without limitation, penalties and interest) imposed on the any Gross-Up Payment (as well as any loss of tax deduction caused by the Payment or the Gross-Up Payment). Notwithstanding Unless the foregoingCompany and the Employee otherwise agree in writing, all determinations required to be made under this Section and the assumptions to be utilized in arriving at such determinations shall be made in writing in good faith by the accounting firm serving as the Company's independent public accountants immediately prior to the event that Excise Taxes could be avoided by a reduction in payments giving rise to Executive pursuant to this Agreement, such Payment (the Company may reduce such payments to bring "Accountants"). For purposes of making the total payments to that amount that falls immediately below the threshold triggering the Excise Tax, up to a total reduction not to exceed $25,000. Any reduction in payments and/or benefits calculations required by this Section 5.7 6, the accountants may make reasonable assumptions and approximations concerning the application of Sections 280G and 4999 of the Code. The Company and the Employee shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid furnish to the Executive. In Accountants such information and documents as the event that acceleration of vesting of equity award compensation is Accountants may reasonably request to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for the Executive’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on make a pro-rata basis. Executive in no event will have any discretion regarding the ordering of any reduction in payments or benefits. Any Gross-Up Payment determination under this Agreement Section. The Company shall be made bear all costs the Accountants may reasonably incur in connection with thirty (30) days following the date in which the related taxes are remitted to the taxing authorities any calculations contemplated by Executivethis Section.