Limitation on Payments Under Certain Circumstances. (a) Anything in this Agreement to the contrary notwithstanding, in the event the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder. (b) All determinations required to be made under this Section 9, including the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to the date of the Change in Control for purposes of making the applicable determinations under this Section 9 and is reasonably acceptable to the Executive (the “Accounting Firm”). For purposes of all present value determinations required to be made under this Section 9, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations Section 1-280G, Q&A-32. (c) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 shall be binding upon the Company and the Executive and shall be made as soon as reasonably practicable and in no event later than 15 days following the Date of Termination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (i) first, any Payments under Section 6(b)(iii)(A); (ii) second, any other cash Payments that would be made upon a termination of the Executive’s employment, beginning with payments that would be made last in time; (iii) third, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are performance-based vesting awards; (iv) fourth, all rights to payments, vesting, or benefits in connection with any restricted stock awards that are performance-based vesting awards; (v) fifth, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are time-based vesting awards; and (vi) sixth, all rights to any other payments or benefits shall be reduced, beginning with payments or benefits that would be received last in time. All fees and expenses of the Accounting Firm shall be borne solely by the Company. (d) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, 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 have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, the Executive shall pay promptly (and in no event later than 60 days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Executive to the Company if and to the extent such payment would not either reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Underpayment is determined) 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. (e) To the extent requested by the Executive, the Company shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 10 of this Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code.
Appears in 1 contract
Limitation on Payments Under Certain Circumstances. (aR) Anything in this Agreement to the contrary notwithstanding, in the event the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject the Executive Employee to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive Employee would have a greater Net After-Tax After‑Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive Employee would not have a greater Net After-Tax After‑Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced, the Executive Employee shall receive all Agreement Payments to which the Executive Employee is entitled hereunder.
(b) All determinations required to be made under this Section 9, including the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to the date of the Change in Control for purposes of making the applicable determinations under this Section 9 and is reasonably acceptable to the Executive (the “Accounting Firm”). For purposes of all present value determinations required to be made under this Section 9, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations Section 1-280G, Q&A-32.
(cS) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive Employee notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 § 8 shall be binding upon the Company and the Executive Employee and shall be made as soon as reasonably practicable and in no event later than 15 thirty (30) days following the Date date of Terminationtermination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (i1) first, any Payments under Section 6(b)(iii)(A§ 7(A)(4); (ii2) second, any other cash Payments that would be made upon a termination of the Executive’s employment, beginning with payments that would be made last in timeunder § 7(A)(5); (iii3) third, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are performance-based vesting awardsPayments under § 7(A)(2); and (iv4) fourth, all rights to payments, vesting, or benefits in connection with any restricted stock awards that are performance-based vesting awards; (v) fifth, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are time-based vesting awards; and (vi) sixth, all rights to any other payments or benefits shall be reduced, beginning with payments or benefits that would be received last in timePayments under § 7(A)(3). All fees and expenses of the Accounting Firm shall be borne solely by the Company.
(dT) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of the Executive Employee pursuant to this Agreement which that should not have been so paid or distributed (“Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of the Executive Employee pursuant to this Agreement could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which Employee that the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, the Executive Employee shall pay promptly (and in no event later than 60 sixty (60) days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Executive Employee to the Company if and to the extent such payment would not either reduce the amount on which the Executive Employee is subject to tax under Section Sections 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that If the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 sixty (60) days following the date on which the Underpayment is determined) by the Company to or for the benefit of the Executive Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.
(eU) To the extent requested by the ExecutiveEmployee, the Company shall cooperate with the Executive Employee in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive Employee (including, including without limitation, the Executivelimitation Employee’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 10 § 5 of this Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(bQ&A‑2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 Q&A‑9 and Q&A-40 Q&A‑40 to Q&A-44 Q&A‑44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(aQ&A‑2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(aQ&A‑5(a) of the final regulations under Section 280G of the Code.
Appears in 1 contract
Samples: Employment Agreement (First Financial Bancorp /Oh/)
Limitation on Payments Under Certain Circumstances. (a) Anything In the event of a Change of Control as defined in Section 5(f) of this Agreement Agreement, and KPMG LLP, or such other nationally recognized accounting firm as may be selected by the Company, that is reasonably acceptable to the contrary notwithstandingExecutive, in prior to a Change of Control (the event the “Accounting Firm (as defined belowFirm”) shall determine that receipt of all Payments (as defined below) would subject the Executive to the excise tax under Section 4999 of the CodeExcise Tax, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below)Amount. The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) Amount of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt (as defined below) Amount of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.
(b) All determinations required to be made under this Section 9, including the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to the date of the Change in Control for purposes of making the applicable determinations under this Section 9 and is reasonably acceptable to the Executive (the “Accounting Firm”). For purposes of all present value determinations required to be made under this Section 9, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations Section 1-280G, Q&A-32.
(c) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 8 shall be binding upon the Company and the Executive and shall be made as soon as reasonably practicable and in no event later than 15 5 days following the Date of Termination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections of this Agreement in the following order: (i) first, any Payments under Section 6(b)(iii)(A)severance payment that is based on a multiple of Annual Base Salary and/or Target Bonus; (ii) second, any other cash Payments amount of a pro-rata Annual Bonus based on actual performance that would be made upon is treated as a termination of the Executive’s employment, beginning with payments that would be made last in timePayment; (iii) third, all rights to payments, vesting, or benefits in connection with amounts of any options to purchase common stock that are performance-based vesting awards; (iv) fourth, all rights to payments, vesting, or benefits in connection with any restricted stock awards that are performance-based vesting awards; (v) fifth, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are time-based vesting awards; and (vi) sixth, all rights to any other payments or benefits shall be reduced, beginning with payments or benefits that would be received last in time. All fees and expenses medical premiums paid on behalf of the Accounting Firm shall be borne solely by the Company.
(d) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, 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 have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, the Executive shall pay promptly (and in no event later than 60 days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Executive to the Company if and to the extent such payment would not either reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Underpayment is determined) 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.
(e) To the extent requested by the Executive, the Company shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 10 of this Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code.;
Appears in 1 contract
Limitation on Payments Under Certain Circumstances. (a) Anything in this Agreement to the contrary notwithstanding, in In the event the Accounting Firm (of a Change of Control as defined belowin Section 5(f) of this Agreement, and a nationally recognized accounting firm as may be selected by the Company prior to a Change of Control (the “Accounting Firm”) shall determine that receipt of all Payments (as defined below) would subject the Executive to the excise tax under Section 4999 of the CodeExcise Tax, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below)Amount. The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) Amount of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt (as defined below) Amount of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.
(b) All determinations required to be made under this Section 9, including the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to the date of the Change in Control for purposes of making the applicable determinations under this Section 9 and is reasonably acceptable to the Executive (the “Accounting Firm”). For purposes of all present value determinations required to be made under this Section 9, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations Section 1-280G, Q&A-32.
(c) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 8 shall be binding upon the Company and the Executive and shall be made as soon as reasonably practicable and in no event later than 15 5 days following the Date of Termination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections of this Agreement in the following order: (i) first, any Payments under Section 6(b)(iii)(A)severance payment that is based on a multiple of Annual Base Salary and/or Target Bonus; (ii) second, any other cash Payments amount of a pro-rata Annual Bonus based on actual performance that would be made upon is treated as a termination of the Executive’s employment, beginning with payments that would be made last in timePayment; (iii) third, all rights to payments, vesting, or benefits in connection with amounts of any options to purchase common stock that are performance-based vesting awardsmedical premiums paid on behalf of the Executive; (iv) fourththe acceleration of vesting of stock options with an exercise price that exceeds the then fair market value (as reported then or most recently beforehand for the New York Stock Exchange-Composite Transactions in the Wall Street Journal at xxx.xxxxxx.xxx.xxx) of the Common Stock subject to the award, all rights provided that such stock options are not permitted to payments, vesting, or benefits in connection with any restricted stock awards that are performance-based vesting awardsbe valued under Treasury Regulation Section 1.280G-1 Q/A – 24(c); (v) fifthany equity awards accelerated or otherwise valued at full value, all rights provided that such equity awards are not permitted to paymentsbe valued under Treasury Regulation Section 1.280G-1 Q/A – 24(c); (vi) the acceleration of vesting of stock options with an exercise price that exceeds the then fair market value (as reported then or most recently beforehand for the New York Stock Exchange-Composite Transactions in the Wall Street Journal at xxx.xxxxxx.xxx.xxx) of the Common Stock subject to the award and other equity awards, vesting, or benefits in connection with any provided that such stock options and other equity awards are permitted to purchase common stock that are time-based vesting awardsbe valued under Treasury Regulation Section 1.280G-1 Q/A – 24(c); and (vivii) sixth, the acceleration of vesting of all rights to any other payments or benefits stock options and equity awards; provided that with each category the reduction shall be reduceddone on a basis resulting in the highest amount retained by the Executive; and provided, beginning with payments or benefits further, that to the extent permitted by Section 409A of the Code and Sections 280G and 4999 of the Code, if a different reduction procedure would be received last permitted without violating Section 409A of the Code or losing the benefit of the reduction under Sections 280G and 4999 of the Code, the Executive may designate a different order of reduction, with such designation being made by the Executive in timea written notice sent to the Company not later than twenty (20) days after the Executive’s Date of Termination. All fees and expenses of the Accounting Firm shall be borne solely by the Company.
(dc) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, 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 have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (“Section 8 Underpayment”), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, the Executive shall pay promptly (and in no event later than 60 days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Executive to the Company if and to the extent such payment would not either reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an a Section 8 Underpayment has occurred, any such Section 8 Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Section 8 Underpayment is determined) 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.
(e) To the extent requested by the Executive, the Company shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 10 of this Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code.
Appears in 1 contract
Samples: Employment Agreement (Motorola Mobility Holdings, Inc)
Limitation on Payments Under Certain Circumstances. (a) Anything in this Agreement to the contrary notwithstandingnotwithstanding (but subject to the limitation set forth in Section 7(f)), in the event the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Agreement Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below)Amount. The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.
(b) All determinations required to be made under this Section 9, including the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to the date of the Change in Control for purposes of making the applicable determinations under this Section 9 and is reasonably acceptable to the Executive (the “Accounting Firm”). For purposes of all present value determinations required to be made under this Section 9, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations Section 1-280G, Q&A-32.
(c) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 7 shall be binding upon the Company and the Executive Executive, except to the extent the Internal Revenue Service or a court of competent jurisdiction makes a final and binding determination inconsistent therewith, and shall be made as soon as reasonably practicable and in no event later than 15 days following the Date of Termination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (i1) first, any Payments under Section 6(b)(iii)(A4(a)(1)(B); , (ii2) second, any other cash Payments that would on a pro rata basis, and (3) any remaining Payments on a pro rata basis, and, subject to the foregoing, shall be made upon in such a termination manner as to maximize the economic present value of all Payments actually made to the Executive’s employment, beginning with payments that would be made last in time; (iii) third, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are performance-based vesting awards; (iv) fourth, all rights to payments, vesting, or benefits in connection with any restricted stock awards that are performance-based vesting awards; (v) fifth, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are time-based vesting awards; and (vi) sixth, all rights to any other payments or benefits shall be reduced, beginning with payments or benefits that would be received last in time. All fees and expenses of determined by the Accounting Firm shall be borne solely as of the date of the applicable Section 280G Change of Control using the discount rate required by Section 280G(d)(4) of the CompanyCode.
(dc) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, 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 have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (“"Underpayment”"), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, the Executive shall pay promptly (and in no event later than 60 days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Executive to the Company if and to the extent such payment would not either reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Underpayment is determined) 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.
(ed) To the extent requested by the Executive, the Company shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, including without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 10 of this Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code.
(e) All fees and expenses of the Accounting Firm for services performed pursuant to this Section 7 at any time from the date of this Agreement through the Executive’s remaining lifetime or, if longer, through the 20th anniversary of the date of the applicable Section 280G Change of Control, shall be borne solely by the Company. The Company shall pay such fees and expenses not later than the end of the calendar year following the calendar year in which the related work is performed or the expenses are incurred by the Accounting Firm. The amount of such fees and expenses that the Company is obligated to pay in any given calendar year shall not affect the fees and expenses that the Company is obligated to pay in any other calendar year, and the Executive’s right to have the Company pay such fees and expenses may not be liquidated or exchanged for any other benefit.
(f) Anything in this Agreement to the contrary notwithstanding, this Section 7 shall have no effect until September 1, 2011. As of September 1, 2011, this Section 7 shall be in full force and effect, and shall apply in respect of any Section 280G Change of Control occurring on or after September 1, 2011. In the event that a Section 280G Change of Control occurs prior to September 1, 2011, the provisions of Section 8 shall apply to any “parachute payments” (as defined in Section 280G(b)(2)(A) of the Code) made in connection with such Section 280G Change of Control.
Appears in 1 contract
Samples: Change of Control Employment Security Agreement (Monsanto Co /New/)
Limitation on Payments Under Certain Circumstances. (a) a. Anything in this Agreement to the contrary notwithstanding, in the event the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) Severance Benefits would subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments Severance Benefits paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all PaymentsSeverance Benefits, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments Severance Benefits if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt (as defined below) of aggregate Payments Severance Benefits if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.
(b) All determinations required to be made under this Section 9, including the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to the date of the Change in Control for purposes of making the applicable determinations under this Section 9 and is reasonably acceptable to the Executive (the “Accounting Firm”). For purposes of all present value determinations required to be made under this Section 9, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations Section 1-280G, Q&A-32.
(c) b. If the Accounting Firm determines that the aggregate Agreement Payments should be reduced so that the Parachute Value of all PaymentsSeverance Benefits, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 8 shall be binding upon the Company and the Executive and shall be made as soon as reasonably practicable and in no event later than 15 thirty (30) days following the Date date of Terminationtermination. For purposes of reducing the Agreement Payments so that the Parachute Value of all PaymentsSeverance Benefits, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Paymentspayments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (i1) first, any Payments payments under Section 6(b)(iii)(A3(a)(iv); (ii2) second, any other cash Payments that would be made upon a termination of the Executive’s employment, beginning with payments that would be made last in timeunder Section 3(a)(iii); (iii3) third, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are performance-based vesting awardspayments under Section 3(a)(1); and (iv4) fourth, all rights to payments, vesting, or benefits in connection with any restricted stock awards that are performance-based vesting awards; (v) fifth, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are time-based vesting awards; and (vi) sixth, all rights to any other payments or benefits shall be reduced, beginning with payments or benefits that would be received last in timeunder Section 3(a)(ii). All fees and expenses of the Accounting Firm shall be borne solely by the Company.
(d) c. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, 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 that should not have been so paid or distributed (“Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which that the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, the Executive shall pay promptly (and in no event later than 60 sixty (60) days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Executive to the Company if and to the extent such payment would not either reduce the amount on which the Executive is subject to tax under Section Sections 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that If the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 sixty (60) days following the date on which the Underpayment is determined) 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.
(e) d. To the extent requested by the Executive, the Company shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, including without limitation, the limitation Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that those set forth in Section 10 5 of this Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code.
Appears in 1 contract
Limitation on Payments Under Certain Circumstances. (aA) Anything in this Agreement to the contrary notwithstanding, in the event the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject the Executive Employee to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive Employee would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive Employee would not have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced, the Executive Employee shall receive all Agreement Payments to which the Executive Employee is entitled hereunder.
(b) All determinations required to be made under this Section 9, including the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to the date of the Change in Control for purposes of making the applicable determinations under this Section 9 and is reasonably acceptable to the Executive (the “Accounting Firm”). For purposes of all present value determinations required to be made under this Section 9, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations Section 1-280G, Q&A-32.
(cB) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive Employee notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 § 8 shall be binding upon the Company and the Executive Employee and shall be made as soon as reasonably practicable and in no event later than 15 thirty (30) days following the Date date of Terminationtermination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (i1) first, any Payments under Section 6(b)(iii)(A§ 7(A)(4); (ii2) second, any other cash Payments that would be made upon a termination of the Executive’s employment, beginning with payments that would be made last in timeunder § 7(A)(5); (iii3) third, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are performance-based vesting awardsPayments under § 7(A)(2); and (iv4) fourth, all rights to payments, vesting, or benefits in connection with any restricted stock awards that are performance-based vesting awards; (v) fifth, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are time-based vesting awards; and (vi) sixth, all rights to any other payments or benefits shall be reduced, beginning with payments or benefits that would be received last in timePayments under § 7(A)(3). All fees and expenses of the Accounting Firm shall be borne solely by the Company.
(dC) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of the Executive Employee pursuant to this Agreement which that should not have been so paid or distributed (“Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of the Executive Employee pursuant to this Agreement could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which Employee that the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, the Executive Employee shall pay promptly (and in no event later than 60 sixty (60) days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Executive Employee to the Company if and to the extent such payment would not either reduce the amount on which the Executive Employee is subject to tax under Section Sections 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that If the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 sixty (60) days following the date on which the Underpayment is determined) by the Company to or for the benefit of the Executive Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.
(eD) To the extent requested by the ExecutiveEmployee, the Company shall cooperate with the Executive Employee in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive Employee (including, including without limitation, the Executive’s limitation Employee's agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 10 § 5 of this Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code.
Appears in 1 contract
Samples: Employment and Non Competition Agreement (First Financial Bancorp /Oh/)
Limitation on Payments Under Certain Circumstances. (aA) Anything in this Amended Agreement to the contrary notwithstanding, in the event the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject the Executive Employee to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Amended Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive Employee would have a greater Net After-Tax After‑Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive Employee would not have a greater Net After-Tax After‑Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced, the Executive Employee shall receive all Agreement Payments to which the Executive Employee is entitled hereunder.
(b) All determinations required to be made under this Section 9, including the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to the date of the Change in Control for purposes of making the applicable determinations under this Section 9 and is reasonably acceptable to the Executive (the “Accounting Firm”). For purposes of all present value determinations required to be made under this Section 9, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations Section 1-280G, Q&A-32.
(cB) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive Employee notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 § 8 shall be binding upon the Company and the Executive Employee and shall be made as soon as reasonably practicable and in no event later than 15 thirty (30) days following the Date date of Terminationtermination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Amended Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (i1) first, any Payments under Section 6(b)(iii)(A§ 7(A)(4); (ii2) second, any other cash Payments that would be made upon a termination of the Executive’s employment, beginning with payments that would be made last in timeunder § 7(A)(5); (iii3) third, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are performance-based vesting awardsPayments under § 7(A)(2); and (iv4) fourth, all rights to payments, vesting, or benefits in connection with any restricted stock awards that are performance-based vesting awards; (v) fifth, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are time-based vesting awards; and (vi) sixth, all rights to any other payments or benefits shall be reduced, beginning with payments or benefits that would be received last in timePayments under § 7(A)(3). All fees and expenses of the Accounting Firm shall be borne solely by the Company.
(dC) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of the Executive Employee pursuant to this Amended Agreement which that should not have been so paid or distributed (“Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of the Executive Employee pursuant to this Amended Agreement could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which Employee that the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, the Executive Employee shall pay promptly (and in no event later than 60 sixty (60) days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Executive Employee to the Company if and to the extent such payment would not either reduce the amount on which the Executive Employee is subject to tax under Section Sections 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that If the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 sixty (60) days following the date on which the Underpayment is determined) by the Company to or for the benefit of the Executive Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.
(eD) To the extent requested by the ExecutiveEmployee, the Company shall cooperate with the Executive Employee in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive Employee (including, including without limitation, the Executivelimitation Employee’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 10 § 5 of this Amended Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(bQ&A‑2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 Q&A‑9 and Q&A-40 Q&A‑40 to Q&A-44 Q&A‑44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(aQ&A‑2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(aQ&A‑5(a) of the final regulations under Section 280G of the Code.
Appears in 1 contract
Samples: Employment Agreement (First Financial Bancorp /Oh/)
Limitation on Payments Under Certain Circumstances. (aA) Anything in this Agreement to the contrary notwithstanding, in the event the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) Severance Benefits would subject the Executive Employee to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments Severance Benefits paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all PaymentsSeverance Benefits, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive Employee would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments Severance Benefits if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive Employee would not have a greater Net After-Tax Receipt (as defined below) of aggregate Payments Severance Benefits if the Agreement Payments were so reduced, the Executive Employee shall receive all Agreement Payments to which the Executive Employee is entitled hereunder.
(b) All determinations required to be made under this Section 9, including the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to the date of the Change in Control for purposes of making the applicable determinations under this Section 9 and is reasonably acceptable to the Executive (the “Accounting Firm”). For purposes of all present value determinations required to be made under this Section 9, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations Section 1-280G, Q&A-32.
(cB) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced so that the Parachute Value of all PaymentsSeverance Benefits, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive Employee notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 § 8 shall be binding upon the Company and the Executive Employee and shall be made as soon as reasonably practicable and in no event later than 15 thirty (30) days following the Date date of Terminationtermination. For purposes of reducing the Agreement Payments so that the Parachute Value of all PaymentsSeverance Benefits, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Paymentspayments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (i1) first, any Payments payments under Section 6(b)(iii)(A§ 7(A)(3); (ii2) second, any other cash Payments that would be made upon a termination of the Executive’s employment, beginning with payments that would be made last in timeunder § 7(A)(4); (iii3) third, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are performance-based vesting awardspayments under § 7(A)(1); and (iv4) fourth, all rights to payments, vesting, or benefits in connection with any restricted stock awards that are performance-based vesting awards; (v) fifth, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are time-based vesting awards; and (vi) sixth, all rights to any other payments or benefits shall be reduced, beginning with payments or benefits that would be received last in timeunder § 7(A)(2). All fees and expenses of the Accounting Firm shall be borne solely by the Company.
(dC) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of the Executive Employee pursuant to this Agreement which that should not have been so paid or distributed (“Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of the Executive Employee pursuant to this Agreement could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which Employee that the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, the Executive Employee shall pay promptly (and in no event later than 60 sixty (60) days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Executive Employee to the Company if and to the extent such payment would not either reduce the amount on which the Executive Employee is subject to tax under Section Sections 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that If the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 sixty (60) days following the date on which the Underpayment is determined) by the Company to or for the benefit of the Executive Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.
(eD) To the extent requested by the ExecutiveEmployee, the Company shall cooperate with the Executive Employee in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive Employee (including, including without limitation, the Executivelimitation Employee’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 10 § 5 of this Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code.
Appears in 1 contract
Samples: Employment Agreement (First Financial Bancorp /Oh/)
Limitation on Payments Under Certain Circumstances. (a) Anything in this Agreement to the contrary notwithstanding, in the event the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject the Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Agreement Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below)Amount. The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.
(b) All determinations required to be made under this Section 9, including the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to the date of the Change in Control for purposes of making the applicable determinations under this Section 9 and is reasonably acceptable to the Executive (the “Accounting Firm”). For purposes of all present value determinations required to be made under this Section 9, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations Section 1-280G, Q&A-32.
(c) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 7 shall be binding upon the Company and the Executive Executive, except to the extent the Internal Revenue Service or a court of competent jurisdiction makes a final and binding determination inconsistent therewith, and shall be made as soon as reasonably practicable and in no event later than 15 days following the Date of Termination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (i1) first, any Payments under Section 6(b)(iii)(A4(a)(1)(B); , (ii2) second, any other cash Payments that would on a pro rata basis, and (3) any remaining Payments on a pro rata basis, and, subject to the foregoing, shall be made upon in such a termination manner as to maximize the economic present value of all Payments actually made to the Executive’s employment, beginning with payments that would be made last in time; (iii) third, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are performance-based vesting awards; (iv) fourth, all rights to payments, vesting, or benefits in connection with any restricted stock awards that are performance-based vesting awards; (v) fifth, all rights to payments, vesting, or benefits in connection with any options to purchase common stock that are time-based vesting awards; and (vi) sixth, all rights to any other payments or benefits shall be reduced, beginning with payments or benefits that would be received last in time. All fees and expenses of determined by the Accounting Firm shall be borne solely as of the date of the applicable Section 280G Change of Control using the discount rate required by Section 280G(d)(4) of the CompanyCode.
(dc) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, 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 have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (“"Underpayment”"), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, the Executive shall pay promptly (and in no event later than 60 days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Executive to the Company if and to the extent such payment would not either reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Underpayment is determined) 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.
(ed) To the extent requested by the Executive, the Company shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, including without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 10 of this Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code.
(e) All fees and expenses of the Accounting Firm for services performed pursuant to this Section 7 at any time from the date of this Agreement through the Executive’s remaining lifetime or, if longer, through the 20th anniversary of the date of the applicable Section 280G Change of Control, shall be borne solely by the Company. The Company shall pay such fees and expenses not later than the end of the calendar year following the calendar year in which the related work is performed or the expenses are incurred by the Accounting Firm. The amount of such fees and expenses that the Company is obligated to pay in any given calendar year shall not affect the fees and expenses that the Company is obligated to pay in any other calendar year, and the Executive’s right to have the Company pay such fees and expenses may not be liquidated or exchanged for any other benefit.
Appears in 1 contract
Samples: Change of Control Employment Security Agreement (Monsanto Co /New/)
Limitation on Payments Under Certain Circumstances. (a) Anything in this Agreement to the contrary notwithstanding, in the event the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject the Executive to the excise tax under Section 4999 of the CodeCode (the “Excise Tax”), the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that the Executive would not have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced, the Executive shall receive all Agreement Payments to which the Executive is entitled hereunder.
(b) All determinations required to be made under this Section 9, including the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to the date of the Change in Control for purposes of making the applicable determinations under this Section 9 and is reasonably acceptable to the Executive (the “Accounting Firm”). For purposes of all present value determinations required to be made under this Section 9, the Company and the Executive elect to use the applicable federal rate that is in effect on the Effective Date pursuant to Treasury Regulations Section 1-280G, Q&A-32.
(c) If the Accounting Firm determines that aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9 5 shall be binding upon the Company and the Executive and shall be made as soon as reasonably practicable and in no event later than 15 business days following the Date of Termination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (i) first, any Payments under Section 6(b)(iii)(A4(a)(i)(A); (ii) second, any other cash Payments that would be made upon a termination of the Executive’s employment, beginning with payments that would be made last in time; (iii) third, all rights to payments, vesting, vesting or benefits in connection with any options to purchase common stock Equity Awards that are performance-based vesting awards; (iv) fourth, all rights to payments, vesting, vesting or benefits in connection with any restricted stock awards that are performance-based vesting awards; (v) fifth, all rights to payments, vesting, or benefits in connection with any options to purchase common stock Equity Awards that are time-based vesting awards; and (viv) sixthfifth, all rights to any other payments or benefits shall be reduced, beginning with payments or benefits that would be received last in time. All fees and expenses of the Accounting Firm shall be borne solely by the Company.
(dc) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, 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 have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, the Executive shall pay promptly (and in no event later than 60 days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Executive to the Company if and to the extent such payment would not either reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the date on which the Underpayment is determined) 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.
(ed) To the extent requested by the Executive, the Company shall cooperate with the Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Executive (including, including without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 10 8 of this Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code.
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