Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 28 contracts
Samples: Change of Control and Severance Agreement (Veracyte, Inc.), Change of Control and Severance Agreement (Veracyte, Inc.), Change of Control and Severance Agreement (Veracyte, Inc.)
Limitation on Payments. This Agreement is made expressly subject to the provision of law codified at 12 U.S.C. 1828 (k) and 12 C.F.R. Part 359 which regulate and prohibit certain forms of benefits to Executive. Executive acknowledges that he understands these sections of law and that the Bank’s obligations to make payments hereunder are expressly relieved if such payments violate these sections of law or any successors thereto. In the event that the severance and Company or the Bank enters into or has entered into a Securities Purchase Agreement or other benefits provided for similar agreement with the United States Department of Treasury as part of the Capital Purchase Program under the Emergency Economic Stabilization Act of 2008 (“EESA”), the restrictions set forth in this Agreement or otherwise payable paragraph shall apply to any payments under this Agreement. Solely to the extent, and for the period, required by the provisions of Section 111 of EESA applicable to participants in the Capital Purchase Program under EESA and the regulation issued by the Department of the Treasury as published in the Federal Register on October 20, 2008, if the Executive (i) constitute is a “parachute paymentsSenior Executive Officer” within the meaning of Section 111 of EESA and the regulation issued by the Department of the Treasury as published in the Federal Register on October 20, 2008, then: (a) the Executive shall be ineligible to receive compensation hereunder to the extent that the Compensation Committee of the Board of Directors of the Company or the Bank determines this Agreement includes incentives for the Executive to take unnecessary and excessive risks that threaten the value of the Company or the Bank; (b) the Executive shall be required to forfeit any bonus or incentive compensation paid to the Executive hereunder during the period that the Department of the Treasury holds a debt or equity position in the Company or the Bank based on statements of earnings, gains, or other criteria that are later proven to be materially inaccurate; and (c) the Company and the Bank shall be prohibited from making to the Executive, and the Executive shall be ineligible to receive hereunder, any “golden parachute payment” in connection with the Executive’s “applicable severance from employment,” in each case, within the meaning of Section 111 of EESA and the regulation issued by the Department of the Treasury as published in the Federal Register on October 20, 2008. Notwithstanding any other provisions of this Agreement, if the Company’s principal tax advisor determines that the total amounts payable pursuant to this Agreement, together with other payments to which Executive is entitled, would constitute an “excess parachute payment” (as defined in Section 280G of the Internal Revenue Code), as amended, then the total payment under section 1.A above (and (iiproportionally each monthly installment thereof) but for this Section 5, would shall be reduced to the largest amount which may be paid without any portion of such amount being subject to the excise tax imposed by Section 4999 of the Internal Revenue Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 16 contracts
Samples: Severance Compensation Agreement, Severance Compensation Agreement (CVB Financial Corp), Severance Compensation Agreement (CVB Financial Corp)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5.
Appears in 14 contracts
Samples: Change in Control Severance Agreement (Pacific Biosciences of California, Inc.), Change in Control Severance Agreement (Gigamon Inc.), Change in Control Severance Agreement (Gigamon Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (ii) but for this Section 59, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 7 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; or (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 9 will be made in writing by a nationally recognized certified professional services firm selected by the Company, the Company’s independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to which the parties mutually agree (the “Firm”)) immediately prior to Change of Control, whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 59, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5.
Appears in 14 contracts
Samples: Executive Employment Agreement (Otonomy, Inc.), Executive Employment Agreement (Otonomy, Inc.), Executive Employment Agreement (Otonomy, Inc.)
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i“Payment”) would (a) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, Code and (iib) but for this Section 5sentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s benefits under Section 3 will such Payment shall either be either:
(ai) delivered in full, or
or (bii) delivered as to such lesser extent which would result in no portion of such benefits Payment being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefitslargest payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of the Code. If The Company will select an adviser with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax, provided, that the adviser’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code to perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such adviser required to be made hereunder. The adviser shall provide its calculations to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company. Any good faith determinations of the adviser made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in severance and other payments or benefits constituting “parachute payments” is necessary so that benefits are delivered pursuant to a lesser extent, reduction this Section 8 will occur in the following order: (i1) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awardsawards other than stock options; (iv3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is other benefits payable to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 14 contracts
Samples: Change in Control and Severance Agreement (Ceribell, Inc.), Change in Control and Severance Agreement (Arteris, Inc.), Change in Control and Severance Agreement (4D Molecular Therapeutics, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 59, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing A nationally recognized certified professional services firm selected by the Company, the Company’s independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will ) shall perform the foregoing calculations related to the Excise Tax. The Company shall bear all expenses with respect to the determinations by the Firm required to be conclusive and binding upon Executive and the Companymade hereunder. For purposes of making the calculations required by this Section 5Section, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company will bear all costs and Executive within fifteen (15) calendar days after the date on which Executive’s right to the severance benefits or other payments is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the Firm may incur in connection with any calculations contemplated by this Section 5made hereunder shall be final, binding, and conclusive upon the Company and Executive.
Appears in 13 contracts
Samples: Executive Employment Agreement (Aadi Bioscience, Inc.), Executive Employment Agreement (Aadi Bioscience, Inc.), Executive Employment Agreement (Aadi Bioscience, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Code Section 280G of the Code, and (ii) but for this Section 56, would be subject to the excise tax imposed by Code Section 4999 of the Code4999, then Executive’s severance benefits under Section 3 4 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Code Section 4999 of the Code4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Code Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Code Section 4999 of the Code4999. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; or (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 6 will be made in writing by a nationally recognized certified professional services firm selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree Company (the “Firm”)) immediately prior to Change of Control, whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 56, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 56.
Appears in 12 contracts
Samples: Executive Severance Agreement (Invuity, Inc.), Executive Change of Control Agreement (Invuity, Inc.), Executive Change of Control Agreement (Invuity, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 522, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser letter extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Notwithstanding the foregoing, to the extent the Company submits any payment or benefit payable to Executive under this Agreement or otherwise to the Company’s stockholders for approval in accordance with Treasury Regulation Section 1.280G-1 Q&A 7, the foregoing provisions shall not apply following such submission and such payments and benefits will be treated in accordance with the results of such vote, except that any reduction in, or waiver of, such payments or benefits required by such vote will be applied without any application of discretion by Executive and in the order prescribed by this Section 22. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 22 will be made in writing by the Company’s an independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree firm (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 522, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 22. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 522.
Appears in 10 contracts
Samples: Employment Agreement (Inogen Inc), Employment Agreement (Inogen Inc), Employment Agreement (Inogen Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 54, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 4(a)(i) will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will shall occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280GG of the Code), (iii) ; cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. Within any such category of “parachute payment”, a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are, and to the extent any such payment is to be made over time (e.g., in installments, etc.), then the payments shall be waived in reverse chronological order. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 4 will be made in writing by the Company’s an independent public accountants firm immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 54, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 54.
Appears in 9 contracts
Samples: Change of Control Severance Agreement (Fortinet, Inc.), Change of Control Severance Agreement (Fortinet, Inc.), Change of Control Severance Agreement (Fortinet, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 59.0, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 the foregoing clause (i) will be either:
(a) delivered in full, ; or
(b) delivered as to such lesser extent which as would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever Whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will shall occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; and (iv) reduction of employee benefits; provided that the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 9.0 will be made in writing by the Company’s an independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree firm (the “Firm”)) immediately prior to Change of Control, whose determination will be conclusive and binding upon the Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 59.0, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 9.0. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5Section.
Appears in 9 contracts
Samples: Executive Employment Agreement (Us Ecology, Inc.), Executive Employment Agreement (Us Ecology, Inc.), Executive Employment Agreement (Us Ecology, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash paymentspayments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the excise tax will be the first cash payment to be reduced); (ii) cancellation of awards Equity Awards that were granted “contingent on a change in ownership or control” (within the meaning of Code Section 280GG (if two or more Equity Awards are granted on the same date, each award will be reduced on a pro-rata basis), ; (iii) cancellation reduction of the accelerated vesting of equity awardsEquity Awards in the reverse order of date of grant of the awards (i.e., the vesting of the most recently granted Equity Awards will be cancelled first and if more than one Equity Award was made to Executive on the same date of grant, all such awards will have their acceleration of vesting reduced pro rata) unless Executive elects in writing a different order for cancellation; and (iv) reduction of employee benefits. In benefits in reverse chronological order (i.e., the benefit owed on the latest date following the occurrence of the event that acceleration of vesting of equity award compensation is triggering the excise tax will be the first benefit to be reduced, such acceleration ). In no event will the Executive have any discretion with respect to the ordering of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awardspayment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 8 contracts
Samples: Change of Control Severance Agreement (Quotient Technology Inc.), Change of Control Severance Agreement (Quotient Technology Inc.), Change of Control Severance Agreement (Quotient Technology Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this COC Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 and Section 4(a) respectively will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) order reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may incur in connection with any calculations contemplated by this Section 5.
Appears in 8 contracts
Samples: Executive Severance Agreement (Plantronics Inc /Ca/), Executive Severance Agreement (Plantronics Inc /Ca/), Executive Severance Agreement (Plantronics Inc /Ca/)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 54, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 4 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 54, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may incur in connection with any calculations contemplated by this Section 54.
Appears in 8 contracts
Samples: Change of Control and Severance Agreement (Cutera Inc), Change of Control and Severance Agreement (Cutera Inc), Change of Control and Severance Agreement (Cutera Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280GG of the Code), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this SectionSection 5. The Company will bear all costs the Firm Accountants may incur in connection with any calculations contemplated by this Section 5.
Appears in 8 contracts
Samples: Severance Agreement (Comscore, Inc.), Change of Control Agreement (Comscore, Inc.), Change of Control Agreement (Comscore, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of in Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 8 contracts
Samples: Severance Agreement (Arista Networks, Inc.), Severance Agreement (Arista Networks, Inc.), Severance Agreement (Arista Networks, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; or (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of 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. In all events, the Executive shall have no right, power or discretion to determine the reduction of payments and/or benefits. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a nationally recognized certified professional services firm selected by the Company, the Company’s independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to which the parties mutually agree (the “Firm”)) immediately prior to the Change in Control, whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm Accountants may reasonably request in order to make a determination under this SectionSection 5. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5.
Appears in 8 contracts
Samples: Change in Control Severance Agreement (Iridex Corp), Change in Control Severance Agreement (Iridex Corp), Change in Control Severance Agreement (Iridex Corp)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 511, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 8 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments, which will occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to be reduced; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reducedawards, such acceleration of vesting which will be cancelled occur in the reverse order of the date of grant for such stock awards (i.e., the vesting of the most recently granted stock awards will be reduced first); and (iii) reduction of other benefits paid or provided to the Executive’s , which will occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced. If more than one equity awardsaward was made to the Executive on the same date of grant, all such awards will have their acceleration of vesting reduced pro rata. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 11 will be made in writing by the Company’s a nationally recognized firm of independent public accountants immediately prior to a Change of Control or such other person or entity to which selected by the parties mutually agree Company (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 511, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 511.
Appears in 7 contracts
Samples: Employment Agreement (Phunware, Inc.), Employment Agreement (Phunware, Inc.), Employment Agreement (Phunware, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 510, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 8 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; or (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. 0000 Xxxxxxxxx Xxxxxxx, Xxx 000, Xxx Xxxxx, XX 00000, Xxxxxx Xxxxxx Tel: 000.000.0000 xxx.xxxxxxxxxxxx.xxx Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 10 will be made in writing by a nationally recognized certified professional services firm selected by the Company, the Company’s independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to which the parties mutually agree (the “Firm”)) immediately prior to Change of Control, whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 510, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 510. Notwithstanding the foregoing, this Section 10 shall not apply to payments or benefits resulting from the consummation of the Merger, whether under this Agreement or otherwise, for which the Executive is entitled to indemnification under the terms of the Indemnification Agreement entered into by the Company and Executive as of the date hereof.
Appears in 7 contracts
Samples: Executive Employment Agreement (Grid Dynamics Holdings, Inc.), Executive Employment Agreement (Grid Dynamics Holdings, Inc.), Executive Employment Agreement (Grid Dynamics Holdings, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of in Control or such other person or entity to which a “Big Four” national accounting firm selected by the parties mutually agree Company (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of Equity Awards; and (3) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of Equity Awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive’s Equity Awards. If two or more Equity Awards are granted on the same date, each Equity Award will be reduced on a pro-rata basis. In no event will Executive exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.
Appears in 7 contracts
Samples: Change in Control Agreement (Amber Road, Inc.), Change in Control and Severance Agreement (Maxlinear Inc), Change in Control and Severance Agreement (Maxlinear Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 510, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of cash paymentsthe severance payments under Sections 8(a)(i) or 8(b)(i); (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 10 will be made in writing by the Company’s an independent public accountants firm immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 510, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 10. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 510.
Appears in 7 contracts
Samples: Employment Agreement (TeleNav, Inc.), Executive Employment Agreement (TeleNav, Inc.), Executive Employment Agreement (TeleNav, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s benefits under Section 3 will this Agreement shall be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i1) reduction of cash payments; , (ii2) cancellation of equity awards granted within the twelve-month period prior to a “contingent on a change in ownership or of control” (within as determined under Code Section 280G) that are deemed to have been granted contingent upon the meaning change of control (as determined under Code Section 280G), (iii3) cancellation of accelerated vesting of equity awards; awards and (iv4) reduction of continued employee benefits. In the event that acceleration of accelerated vesting of equity award compensation awards is to be reducedcancelled, such vesting acceleration of vesting will be cancelled in the reverse chronological order of the date of award grant of Executive’s equity awardsdates. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will shall be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5Section, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5Section.
Appears in 7 contracts
Samples: Change of Control and Severance Agreement (Cerence Inc.), Change of Control and Severance Agreement (Cerence LLC), Change of Control and Severance Agreement (Cerence LLC)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 57, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 4 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash paymentspayments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the excise tax will be the first cash payment to be reduced); (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation reduction of the accelerated vesting of full-value equity awardsawards in the reverse order of date of grant of the awards (i.e., the vesting of the most recently granted full-value awards will be cancelled first); (iv) reduction of employee benefits. In the event that acceleration of accelerated vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled stock options and stock appreciation rights in the reverse order of the date of grant of Executive’s equity awardsthe awards (i.e., the vesting of the most recently granted awards will be cancelled first); and (v) reduction of employee benefits in reverse chronological order (i.e., the benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first benefit to be reduced). In no event will Executive have any discretion with respect to the ordering of payment reductions. Unless and only to the extent the Company and Executive otherwise agree in writing, any determination required under this Section 5 7 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree nationally recognized firm (the “Firm”)) reasonably agreed upon between the parties, whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 57, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs for payment of the Firm may incur Firm’s services in connection with any calculations contemplated by this Section 57.
Appears in 7 contracts
Samples: Severance Agreement (Aerohive Networks, Inc), Severance Agreement (Aerohive Networks, Inc), Severance Agreement (Aerohive Networks, Inc)
Limitation on Payments. In the event that the severance and or change in control-related or other payments or benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 59, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s such payments or benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance or change in control-related or other payments or benefits, notwithstanding that all or some portion of such payments or benefits may be taxable under Section 4999 of the Code. If a reduction in severance and and/or other payments or benefits constituting “parachute payments” is necessary so that payments or benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments, which will occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to be reduced; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reducedawards, such acceleration of vesting which will be cancelled occur in the reverse order of the date of grant for such stock awards (i.e., the vesting of the most recently granted stock awards will be reduced first); and (iii) reduction of other benefits paid or provided to Executive’s , which will occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced. If more than one equity awardsaward was made to Executive on the same date of grant, all such awards will have their acceleration of vesting reduced pro rata. In no event will Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 9 will be made in writing by the Company’s a nationally recognized firm of independent public accountants immediately prior to a Change of Control or such other person or entity to which selected by the parties mutually agree Company (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 59, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this SectionSection 9. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 59.
Appears in 7 contracts
Samples: Employment Agreement (TrueCar, Inc.), Employment Agreement (TrueCar, Inc.), Employment Agreement (TrueCar, Inc.)
Limitation on Payments. In the event that the severance and or change in control-related or other payments or benefits provided for in this Agreement or otherwise payable to Executive (collectively, the “Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 58, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s such payments or benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefitsPayments, notwithstanding that all or some portion of such benefits Payments may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits Payments constituting “parachute payments” is necessary so that benefits Payments are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of equity awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280GG of the Code), ; (ii) a pro rata reduction of (A) cash payments that are subject to Section 409A as deferred compensation and (B) cash payments not subject to Section 409A; (iii) a pro rata reduction of (A) employee benefits that are subject to Section 409A as deferred compensation and (B) employee benefits not subject to Section 409A; and (iv) a pro rata cancellation of (A) accelerated vesting of equity awards; awards that are subject to Section 409A as deferred compensation and (ivB) reduction of employee benefits. In the event that equity awards not subject to Section 409A. If acceleration of vesting of equity award compensation awards is to be reducedcancelled, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 8 will be made in writing by the Company’s a nationally recognized firm of independent public accountants immediately prior to a Change of Control or such other person or entity to which selected by the parties mutually agree Company (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 58, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this SectionSection 8. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 58.
Appears in 6 contracts
Samples: Employment Agreement (Sarcos Technology & Robotics Corp), Employment Agreement (Sarcos Technology & Robotics Corp), Employment Agreement (Sarcos Technology & Robotics Corp)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 59, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 6 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state state, and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; or (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 9 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control nationally recognized accounting or such other person or entity to which the parties mutually agree valuation firm (the “Firm”)) selected by the Company, whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 59, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 59.
Appears in 6 contracts
Samples: Executive Employment Agreement (National Instruments Corp), Executive Employment Agreement (National Instruments Corp), Executive Employment Agreement (National Instruments Corp)
Limitation on Payments. In the event that the severance and payments or other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s benefits under Section 3 will this Agreement shall be either:
either (a) delivered in full, or
or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or benefits constituting “parachute payments” is necessary so that benefits are delivered pursuant to a lesser extentthe foregoing provision, reduction will shall occur in the following order: order unless the Executive elects in writing a different order (i) provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the parachute payment occurs): reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity stock awards; (iv) reduction of employee benefits. In the event that If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awardsstock awards unless the Executive elects in writing a different order for cancellation. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will 5.6 shall be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 55.6, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and Executive will furnish shall further to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this SectionSection 5.6. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 55.6.
Appears in 6 contracts
Samples: Executive Employment Agreement (Pacific Ethanol, Inc.), Executive Employment Agreement (Procera Networks Inc), Executive Employment Agreement (Pacific Ethanol, Inc.)
Limitation on Payments. A. Sections 280G and 4999 of the Internal Revenue Code (the "Code") impose a 20% excise tax on excessive compensation received by, and deny a deduction to the Company for the amount of excess compensation paid to, employees who are officers, shareholders or highly compensated individuals as a result of a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the Company's assets. In general, payments to an individual that are contingent on a Change in Control will not be treated as excessive if such payments are less than three (3) times the average annual compensation received by such individual over the five (5) years preceding the Change in Control. The provisions that follow are designed to maximize the amounts payable to the Executive under this Agreement in the event of a Change in Control, taking into consideration the possible application of the foregoing Code provisions.
B. Notwithstanding anything in this Agreement to the contrary, in the event that it is determined that any payment by the severance and other benefits provided Company to the Executive or for in the Executive's benefit, whether paid or payable pursuant to the terms of this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5otherwise, would be subject to the excise tax imposed by taxable because of Section 4999 of the Code, then the aggregate present value of amounts payable to the Executive or for the Executive’s benefits 's benefit pursuant to this Agreement shall be reduced to the Reduced Amount unless C. below applies. For purposes of this subparagraph, the "Reduced Amount" shall be defined as an amount expressed in present value which maximizes the amounts payable pursuant to this Agreement without causing any such payments to be taxable to the Executive because of Section 4999 of the Code.
C. If the Net After Tax Benefit of all amounts payable to the Executive pursuant to this Agreement exceeds the Net After Tax Benefit of the Reduced Amount, then this Section 10 shall not apply to limit any amount payable to the Executive. "Net After Tax Benefit" means the amount payable to the Executive or for the Executive's benefit pursuant to this Agreement (whether the Reduced Amount or the full amounts payable to the Executive under Section 3 will be either:
this Agreement), less the sum of (ai) delivered in full, or
(b) delivered as the amount of federal income taxes payable with respect to such lesser extent which would result in no portion amounts and (ii) the amount of excise taxes payable on such benefits being subject amounts pursuant to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Companyif any. For purposes of making this clause C., federal income taxes payable in respect of future payments shall be those prescribed by the calculations required by this Section 5, Code at the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning time the application of Sections 280G and 4999 of calculation is made for the Code. The Company and Executive will furnish to periods in which the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5same shall be payable.
Appears in 6 contracts
Samples: Executive Employment Agreement (TBC Corp), Executive Employment Agreement (TBC Corp), Executive Employment Agreement (TBC Corp)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 and Section 4(a) respectively will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) order reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may incur in connection with any calculations contemplated by this Section 5.
Appears in 6 contracts
Samples: Executive Severance Agreement (Plantronics Inc /Ca/), Executive Severance Agreement (Plantronics Inc /Ca/), Executive Severance Agreement (Plantronics Inc /Ca/)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 54, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 4(a)(i) will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of ExecutiveEmployee’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 4 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 54, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 54.
Appears in 5 contracts
Samples: Change of Control Severance Agreement (Fuel Tech, Inc.), Change of Control Severance Agreement (Bluearc Corp), Change of Control Severance Agreement (Bluearc Corp)
Limitation on Payments. In (a) Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Section 5sentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive’s benefits under Section 3 will be either:
after-tax proceeds: (ax) delivered payment in fullfull of the entire amount of the Payment (a “Full Payment”), or
or (by) delivered as to such lesser extent which would result in no portion payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the CodeExcise Tax (a “Reduced Payment”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive’s receipt, on an after-tax basis, of the greatest greater amount of benefitsthe Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax.
(b) If a Reduced Payment is made pursuant to this Section 8, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in severance and other payments and/or benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i1) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awardsawards other than stock options; (iv3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefitsother benefits payable to Executive. In the event that acceleration of vesting of compensation from Executive’s equity award compensation awards is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant grant.
(c) The independent registered public accounting firm engaged by the Company for general audit purposes as of Executive’s equity awardsthe day prior to the effective date of the Change in Control shall make all determinations required to be made under this Section 8. Unless If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the Change in Control, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder.
(d) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing within 15 calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company’s independent public accountants immediately prior to a Change of Control Company or Executive) or such other person time as requested by the Company or entity Executive. If the independent registered public accounting firm determines that no Excise Tax is payable with respect to which the parties mutually agree (the “Firm”)a Payment, whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning either before or after the application of Sections 280G and 4999 of the Code. The Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will furnish be imposed with respect to such Payment. Any good faith determinations of the Firm such information accounting firm made hereunder shall be final, binding and documents as conclusive upon the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5and Executive.
Appears in 5 contracts
Samples: Change in Control Severance Agreement (Corvus Pharmaceuticals, Inc.), Change in Control Severance Agreement (Corvus Pharmaceuticals, Inc.), Change in Control Severance Agreement (Corvus Pharmaceuticals, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s benefits under Section 3 will this Agreement shall be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i1) reduction of cash payments; , (ii2) cancellation of equity awards granted within the twelve (12)-month period prior to a “contingent on a change in ownership or of control” (within as determined under Code Section 280G) that are deemed to have been granted contingent upon the meaning change of control (as determined under Code Section 280G), (iii3) cancellation of accelerated vesting of equity awards; awards and (iv4) reduction of continued employee benefits. In the event that acceleration of accelerated vesting of equity award compensation awards is to be reducedcancelled, such vesting acceleration of vesting will be cancelled in the reverse chronological order of the date of award grant of Executive’s equity awardsdates. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will shall be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5Section, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5Section.
Appears in 5 contracts
Samples: Change of Control and Severance Agreement (Cerence Inc.), Change of Control and Severance Agreement (Cerence Inc.), Change of Control and Severance Agreement (Cerence Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 58.0, would be subject to the excise tax imposed by Section 4999 of the Code, then ExecutiveEmployee’s severance benefits under Section 3 the foregoing clause (i) will be either:
(a) delivered in full, ; or
(b) delivered as to such lesser extent which as would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever Whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or of some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will shall occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; and (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executivethe Employee’s equity awards. Unless the Company and Executive Employee otherwise agree in writing, any determination required under this Section 5 8.0 will be made in writing by the Company’s an independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree firm (the “Firm”)) immediately prior to Change of Control, whose determination will be conclusive and binding upon Executive the Employee and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 58.0, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive Employee will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 8.0. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5Section.
Appears in 5 contracts
Samples: Employment Agreement (Us Ecology, Inc.), Employment Agreement (Us Ecology, Inc.), Employment Agreement (Us Ecology, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to that Executive would receive from the Company or any other party whether in connection with the provisions of this Agreement or otherwise (the “Payments”) would (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 the Payments will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits Payments being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefitsPayments, notwithstanding that all or some portion of such benefits Payments may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash paymentspayments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the excise tax under Code Section 4999 will be the first cash payment to be reduced); (ii) cancellation of equity awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G) in the reverse order of date of grant of the equity awards (that is, the most recently granted equity awards will be cancelled first), (iii) cancellation reduction of accelerated vesting of equity awardsawards in the reverse order of date of grant of the equity awards (that is, the vesting of the most recently granted equity awards will be cancelled first); (iv) reduction of employee benefits. In benefits in reverse chronological order (that is, the benefit owed on the latest date following the occurrence of the event that acceleration of vesting of equity award compensation is triggering such excise tax will be the first benefit to be reduced, such acceleration ). In no event will Executive have any discretion with respect to the ordering of vesting Payment reductions. Executive will be cancelled in solely responsible for the reverse order payment of all personal tax liability that is incurred as a result of the date payments and benefits received under this Agreement, and neither the Company nor any parent, subsidiary or other affiliate of grant the Company will have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any of Executive’s equity awardsthose payments of personal tax liability. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control nationally recognized accounting or such other person or entity to which the parties mutually agree valuation firm (the “Firm”)) selected by the Company, whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs and make all payments required to be made to the Firm may incur for the Firm’s services that are rendered in connection with any calculations contemplated by this Section 5. The Company will have no liability to Executive for the determinations of the Firm.
Appears in 5 contracts
Samples: Change in Control and Severance Agreement (Pacific Biosciences of California, Inc.), Change in Control and Severance Agreement (Pacific Biosciences of California, Inc.), Change in Control and Severance Agreement (Pacific Biosciences of California, Inc.)
Limitation on Payments. In If any Severance Benefits or any other of the event that the severance and other benefits provided for Total Severance Benefits (as defined in this Agreement or otherwise payable to Executive (iSection) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s payments and benefits under Section 3 will 7.2 of this Agreement shall be either:
either (ai) delivered paid in full, or
or (bii) delivered paid as to such lesser extent which would result in no portion of such payments or benefits being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and payroll taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefitsTotal Severance Benefits, notwithstanding that all or some portion of such benefits may be taxable subject to the Excise Tax under Section 4999 of the Code, and further notwithstanding the fact that the Severance Benefits may be reduced to zero after the application of this Section. If For purposes of this Agreement, “Total Severance Benefits” means the severance payments and benefits under Section 7.2 of this Agreement and all other payments and benefits received or to be received by Executive under this Agreement and all payments and benefits (if any) to which Executive may be entitled under any plan, agreement or otherwise upon or as the result of a reduction in severance Change of Control or the termination of his employment with Company, or both. This Section is not intended to prevent and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur shall not result in the following order: (i) reduction prevention of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated acceleration and full vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reducedany outstanding stock option, restricted stock or stock appreciation right held by Executive if any such acceleration of vesting will be cancelled in is provided for under the reverse order terms of the date of award or grant of Executive’s equity awardsagreement related to such stock option, restricted stock or stock appreciation right. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 will shall be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will shall be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5Section, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5Section.
Appears in 4 contracts
Samples: Executive Employment Agreement (Heelys, Inc.), Executive Employment Agreement (Heelys, Inc.), Executive Employment Agreement (Heelys, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 512, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of 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. In no event shall the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 12 will be made in writing by the Company’s independent public accountants who are primarily used by the Company immediately prior to a the Change of Control Control, the Company’s legal counsel or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 512, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 12. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 512.
Appears in 4 contracts
Samples: Executive Employment Agreement (Sarepta Therapeutics, Inc.), Executive Employment Agreement (Avi Biopharma Inc), Executive Employment Agreement (Avi Biopharma Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 4(a)(i) will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; or (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by a nationally recognized certified professional services firm selected by the Company, the Company’s independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to which the parties mutually agree (the “Firm”)) immediately prior to Change of Control, whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5.
Appears in 4 contracts
Samples: Change of Control Severance Agreement (Xactly Corp), Change of Control Severance Agreement (Xactly Corp), Change of Control Severance Agreement (Xactly Corp)
Limitation on Payments. In If any payments pursuant to the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the CodeInternal Revenue Code (the “ Payments”), whichever then Executive shall receive either (i) the full Payments or (ii) such lesser amount of the foregoing amounts, taking into account Payments as would yield the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by greatest net amount to Executive on an after-tax basis, of basis (applying the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under then highest aggregate marginal tax rates and Section 4999 of the Code4999). If a reduction in severance and other benefits constituting “parachute payments” of the Payments is necessary so that benefits are delivered required pursuant to a lesser extentsubpart (ii), reduction then the Payment will occur be reduced in the following order: (i) reduction any vesting of cash payments; equity awards where the equity awards will, after the Change in Control, not be for publicly-traded stock nor cashed out in the Change in Control, (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G)any taxable benefits, (iii) cancellation any cash payments (including any cash payments by reason of accelerated equity awards cashed out by reason of the Change in Control when and if those payments are counted for purposes of Section 4999), (iv) any nontaxable benefits, and (v) any vesting of equity awards; awards that will either be cashed out in the Change in Control or be equity awards with respect to publicly traded stock, in each case in clauses (ivi) reduction through (v) in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date that triggers the applicability of employee benefitsthe excise tax, to the extent necessary to maximize the reduced Payment. The Company may elect to contest at its expense any initial IRS determination with respect to an Executive. Executive shall cooperate reasonably with the Company in any effort by the Company to contest an IRS determination under this paragraph, including by the making of such filings and appeals as the Company may reasonably require, but nothing herein shall be construed as requiring Executive to bear any cost or expense of such a contest or in connection therewith to compromise any tax item (including without limitation any deduction or credit) other than the Section 4999 tax and related interest and penalties, if any, that are the subject of the contested IRS determination. In the event that acceleration of vesting any underpayment or overpayment under this Agreement, as determined by the nationally recognized accounting firm, the amount of equity award compensation is such underpayment or overpayment shall be promptly paid to be reducedExecutive or refunded to the Company, such acceleration of vesting will be cancelled in as the reverse order case may be, with interest at 120% of the date applicable Federal rate provided for in Section 7872(f)(2) of grant the Internal Revenue Code. All tax determinations under this Section 6 shall be made at the Company’s expense by a nationally recognized accounting firm selected by the Company in its reasonable discretion. Any good faith determinations of Executive’s equity awards. Unless this accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5Executive.
Appears in 4 contracts
Samples: Change in Control & Severance Benefit Agreement (American Science & Engineering, Inc.), Severance Benefit & Change in Control Agreement (American Science & Engineering, Inc.), Change in Control & Severance Benefit Agreement (American Science & Engineering, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may incur in connection with any calculations contemplated by this Section 5.
Appears in 4 contracts
Samples: Change of Control and Severance Agreement (Comscore, Inc.), Change of Control and Severance Agreement (Comscore, Inc.), Change of Control and Severance Agreement (Comscore, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 57, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 4 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash paymentspayments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the excise tax will be the first cash payment to be reduced); (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation reduction of the accelerated vesting of full-value equity awardsawards in the reverse order of date of grant of the awards (i.e., the vesting of the most recently granted full-value awards will be cancelled first); (iv) reduction of employee benefits. In the event that acceleration of accelerated vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled stock options and stock appreciation rights in the reverse order of the date of grant of Executive’s equity awardsthe awards (i.e., the vesting of the most recently granted awards will be cancelled first); and (v) reduction of employee benefits in reverse chronological order (i.e., the benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first benefit to be reduced). In no event will Executive have any discretion with respect to the ordering of payment reductions. Unless and only to the extent the Company and Executive otherwise agree in writing, any determination required under this Section 5 7 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree nationally recognized accounting firm (the “Firm”)) reasonably agreed upon between the parties, whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 57, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 7. The Company will bear all costs for payment of the Firm may incur Firm’s services in connection with any calculations contemplated by this Section 57.
Appears in 4 contracts
Samples: Severance Agreement (Aerohive Networks, Inc), Severance Agreement (Flynn David K.), Severance Agreement (Aerohive Networks, Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 522, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance and other benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser letter extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance and other benefits, notwithstanding that all or some portion of such severance and other benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Notwithstanding the foregoing, to the extent the Company submits any payment or benefit payable to Executive under this Agreement or otherwise to the Company’s stockholders for approval in accordance with Treasury Regulation Section 1.280G-1 Q&A 7, the foregoing provisions shall not apply following such submission and such payments and benefits will be treated in accordance with the results of such vote, except that any reduction in, or waiver of, such payments or benefits required by such vote will be applied without any application of discretion by Executive and in the order prescribed by this Section 22. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 22 will be made in writing by the Company’s an independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree firm (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 522, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 22. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 522.
Appears in 4 contracts
Samples: Employment Agreement (Inogen Inc), Employment Agreement (Inogen Inc), Employment Agreement (Inogen Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (ii) but for this Section 59, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 7 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments, which shall occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to be reduced; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reducedEquity Awards, such acceleration of vesting will be cancelled which shall occur in the reverse order of the date of grant for such Equity Awards (i.e., the vesting of the most recently granted Equity Awards will be reduced first); and (iii) reduction of other benefits paid or provided to Executive’s equity awards, which will occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced. If more than one Equity Award was made to Executive on the same date of grant, all such awards shall have their acceleration of vesting reduced pro rata. In no event will Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 9 will be made in writing by the Company’s a nationally recognized firm of independent public accountants immediately prior to a Change of Control or such other person or entity to which selected by the parties mutually agree Company (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 59, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 59.
Appears in 4 contracts
Samples: Employment Agreement (MultiVir Inc.), Employment Agreement (MultiVir Inc.), Employment Agreement (MultiVir Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 58, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order unless the Company determines in writing a different order: (i1) reduction of cash paymentsthe severance payments under Sections 7(a)(i) or 7(b)(i); (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awardsAwards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award Award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awardsAwards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 8 will be made in writing by the Company’s an independent public accountants firm immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 58, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 58.
Appears in 4 contracts
Samples: Employment Agreement (SourceForge, Inc), Employment Agreement (SourceForge, Inc), Employment Agreement (SourceForge, Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 56, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 4 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 6 will be made in writing by the Company’s independent public accountants immediately prior to a Change of in Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 56, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 56.
Appears in 4 contracts
Samples: Change in Control and Severance Agreement (On Deck Capital, Inc.), Change in Control and Severance Agreement (On Deck Capital, Inc.), Change in Control and Severance Agreement (On Deck Capital Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of in Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 3 contracts
Samples: Change in Control Agreement (Electro Scientific Industries Inc), Change in Control Agreement (Electro Scientific Industries Inc), Change in Control and Severance Agreement (Box Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (ii) but for this Section 510, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 8 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments, which will occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to be reduced; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reducedEquity Awards, such acceleration of vesting which will be cancelled occur in the reverse order of the date of grant for such Equity Awards (i.e., the vesting of the most recently granted Equity Awards will be reduced first); and (iii) reduction of other benefits paid or provided to Executive’s equity awards, which will occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced. If more than one Equity Award was made to Executive on the same date of grant, all such awards will have their acceleration of vesting reduced pro rata. In no event will Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 10 will be made in writing by the Company’s a nationally recognized firm of independent public accountants immediately prior to a Change of Control or such other person or entity to which selected by the parties mutually agree Company (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 510, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 510.
Appears in 3 contracts
Samples: Employment Agreement (Velodyne Lidar, Inc.), Employment Agreement (Velodyne Lidar, Inc.), Employment Agreement (Plantronics Inc /Ca/)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (ii) but for this Section 58, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 6 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; or (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 8 will be made in writing by a nationally recognized certified professional services firm selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree Company (the “Firm”), ) whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 58, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 8. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 58.
Appears in 3 contracts
Samples: Executive Employment Agreement (Savara Inc), Executive Employment Agreement (Savara Inc), Executive Employment Agreement (Savara Inc)
Limitation on Payments. In the event that the severance and payments or other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s benefits under Section 3 will this Agreement shall be either:
either (a) delivered in full, or
or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or benefits constituting “parachute payments” is necessary so that benefits are delivered pursuant to a lesser extentthe foregoing provision, reduction will shall occur in the following order: order unless the Executive elects in writing a different order (i) provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the parachute payment occurs): reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity stock awards; (iv) reduction of employee benefits. In the event that If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awardsstock awards unless the Executive elects in writing a different order for cancellation. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will 5.7 shall be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 55.7, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and Executive will furnish shall further to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this SectionSection 5.7. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 55.7.
Appears in 3 contracts
Samples: Executive Employment Agreement (Polar Power, Inc.), Executive Employment Agreement (Polar Power, Inc.), Executive Employment Agreement (Polar Power, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (the “Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 59, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 Payments will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefitsPayments, notwithstanding that all or some portion of such benefits Payments may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits the Payments constituting “parachute payments” is necessary so that benefits are delivered no portion of such Payments is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing A nationally recognized certified professional services firm selected by the Company, the Company’s independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will ) shall perform the foregoing calculations related to the Excise Tax. The Company shall bear all expenses with respect to the determinations by the Firm required to be conclusive and binding upon Executive and the Companymade hereunder. For purposes of making the calculations required by this Section 5Section, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company will bear all costs and Executive within fifteen (15) calendar days after the date on which Executive’s right to the severance benefits or other payments is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the Firm may incur in connection with any calculations contemplated by this Section 5made hereunder shall be final, binding, and conclusive upon the Company and Executive.
Appears in 3 contracts
Samples: Executive Employment Agreement (Pfenex Inc.), Executive Employment Agreement (Pfenex Inc.), Executive Employment Agreement (Pfenex Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s benefits under Section 3 will this Agreement shall be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i1) reduction of cash payments; , (ii2) cancellation of equity awards granted within the twelve-month period prior to a “contingent on a change in ownership or of control” (within as determined under Code Section 280G) that are deemed to have been granted contingent upon the meaning change of control (as determined under Code Section 280G), (iii3) cancellation of accelerated vesting of equity awards; awards and (iv4) reduction of continued employee benefits. In the event that acceleration of accelerated vesting of equity award compensation awards is to be reducedcancelled, such vesting acceleration of vesting will be cancelled in the reverse chronological order of the date of award grant of Executive’s equity awardsdates. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will shall be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will shall be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5Section, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5Section.
Appears in 3 contracts
Samples: Change of Control and Severance Agreement (Nuance Communications, Inc.), Change of Control and Severance Agreement (Nuance Communications, Inc.), Change of Control and Severance Agreement (Nuance Communications, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 56, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 6 will be made in writing by the Company’s independent public accountants immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 56, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 56.
Appears in 3 contracts
Samples: Change in Control Severance Agreement (Pacific Biosciences of California Inc), Change in Control Severance Agreement (Pacific Biosciences of California Inc), Change in Control Severance Agreement (Pacific Biosciences of California Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awardsEquity Awards; and (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awardsEquity Awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of in Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 3 contracts
Samples: Severance and Change in Control Agreement (Scilex Holding Co), Severance and Change in Control Agreement (Scilex Holding Co), Severance and Change in Control Agreement (Scilex Holding Co)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 54, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 4(a)(i) will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will shall occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) ; cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 4 will be made in writing by the Company’s an independent public accountants firm immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 54, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 54.
Appears in 3 contracts
Samples: Change of Control Severance Agreement (Fortinet Inc), Change of Control Severance Agreement (Fortinet Inc), Change of Control Severance Agreement (Fortinet Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (1) reduction of the cash severance payments; (2) cancellation of accelerated vesting of equity awards; and (3) reduction of continued employee benefits. In the event that the accelerated vesting of equity awards is to be cancelled, such vesting acceleration will be cancelled in the reverse chronological order of the Executive’s equity awards’ grant dates.
Appears in 3 contracts
Samples: Change in Control and Severance Agreement (Endocyte Inc), Change in Control and Severance Agreement (Endocyte Inc), Change in Control and Severance Agreement (Endocyte Inc)
Limitation on Payments. In the event that the severance and payments or other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s benefits under Section 3 will this Agreement shall be either:
either (a) delivered in full, or
or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or benefits constituting “parachute payments” is necessary so that benefits are delivered pursuant to a lesser extentthe foregoing provision, reduction will shall occur in the following order: order unless the Executive elects in writing a different order (i) provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the parachute payment occurs): reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity stock awards; (iv) reduction of employee benefits. In the event that If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awardsstock awards unless the Executive elects in writing a different order for cancellation. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will 2.6 shall be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 52.6, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and Executive will furnish shall further to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this SectionSection 2.6. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 52.6.
Appears in 3 contracts
Samples: Executive Employment and Noncompetition Agreement (RSC Equipment Rental, Inc.), Executive Employment and Noncompetition Agreement (RSC Holdings Inc.), Executive Employment and Noncompetition Agreement (RSC Equipment Rental, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (ii) but for this Section 58, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 7 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; or (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 8 will be made in writing by a nationally recognized certified professional services firm selected by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree Company (the “Firm”), ) whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 58, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 8. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 58.
Appears in 3 contracts
Samples: Executive Employment Agreement (Mast Therapeutics, Inc.), Executive Employment Agreement (Mast Therapeutics, Inc.), Executive Employment Agreement (Mast Therapeutics, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 4 will be made in writing by the Company’s independent public accountants immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (1) reduction of the cash severance payments; (2) cancellation of accelerated vesting of equity awards; and (3) reduction of continued employee benefits. In the event that the accelerated vesting of equity awards is to be cancelled, such vesting acceleration will be cancelled in the reverse chronological order of the Executive’s equity awards’ grant dates.
Appears in 3 contracts
Samples: Change in Control and Severance Agreement (Realnetworks Inc), Change in Control and Severance Agreement (Realnetworks Inc), Change in Control and Severance Agreement (Realnetworks Inc)
Limitation on Payments. In the event that the severance and other benefits any compensation provided for in this Employment Agreement or otherwise payable to Executive Employee (i) constitute constitutes “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 57, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 such compensation will be either:
(a) delivered Delivered in full, ; or
(b) delivered as Delivered to such lesser extent which that would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, Code whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or of some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered made in order to deliver compensation to a lesser extentextent in accordance with this Section 7, reduction will occur in the following order: (i) reduction of in cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; and (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of ExecutiveEmployee’s equity awards. Unless the Company and Executive Employee otherwise agree in writing, any determination required under this Section 5 7 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive Employee and the Company. For purposes of making the calculations required by this Section 5calculations, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive Employee will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated required by this Section 57.
Appears in 2 contracts
Samples: Employment Agreement (Electro Scientific Industries Inc), Employment Agreement (Electro Scientific Industries Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 523, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance and other benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser letter extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance and other benefits, notwithstanding that all or some portion of such severance and other benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Notwithstanding the foregoing, to the extent the Company submits any payment or benefit payable to Executive under this Agreement or otherwise to the Company’s stockholders for approval in accordance with Treasury Regulation Section 1.280G-1 Q&A 7, the foregoing provisions shall not apply following such submission and such payments and benefits will be treated in accordance with the results of such vote, except that any reduction in, or waiver of, such payments or benefits required by such vote will be applied without any application of discretion by Executive and in the order prescribed by this Section 23. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 23 will be made in writing by the Company’s an independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree firm (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 523, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 23. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 523.
Appears in 2 contracts
Samples: Employment and Severance Agreement (Inogen Inc), Employment and Severance Agreement (Inogen Inc)
Limitation on Payments. In (a) Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (i“Payment”) would (a) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (iib) but for this Section 5sentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive’s benefits under Section 3 will be either:
after-tax proceeds: (ai) delivered payment in fullfull of the entire amount of the Payment (a “Full Payment”), or
or (bii) delivered as to such lesser extent which would result in no portion payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the CodeExcise Tax (a “Reduced Payment”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive’s receipt, on an after-tax basis, of the greatest greater amount of benefitsthe Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax.
(b) If a Reduced Payment is made pursuant to this Section 6, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in severance and other payments and/or benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i1) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awardsawards other than stock options; (iv3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefitsother benefits payable to Executive. In the event that acceleration of vesting of compensation from Executive’s equity award compensation awards is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant grant.
(c) The independent registered public accounting firm engaged by the Company for general audit purposes as of Executive’s equity awardsthe day prior to the effective date of the Change in Control of the Company shall make all determinations required to be made under this Section 6. Unless If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the Change in Control, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder.
(d) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing within 15 calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company’s independent public accountants immediately prior to a Change of Control Company or Executive) or such other person time as requested by the Company or entity Executive. If the independent registered public accounting firm determines that no Excise Tax is payable with respect to which the parties mutually agree (the “Firm”)a Payment, whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning either before or after the application of Sections 280G and 4999 of the Code. The Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will furnish be imposed with respect to such Payment. Any good faith determinations of the Firm such information accounting firm made hereunder shall be final, binding and documents as conclusive upon the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5and Executive.
Appears in 2 contracts
Samples: Employment Agreement (Verrica Pharmaceuticals Inc.), Employment Agreement (Verrica Pharmaceuticals Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement Plan or otherwise payable to Executive a Participant (i) constitute “parachute payments” within the meaning of Section 280G of the CodeCode (“280G Payments”), and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s benefits under Section 3 the 280G Payments will be either:
(ai) (x) delivered in full, or
(bii) (y) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, Excise Tax,
(iii) whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive Participant on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” the 280G Payments is necessary so that no portion of such benefits are delivered subject to a lesser extentthe Excise Tax, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of equity awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (ii) a pro rata reduction of (A) cash payments that are subject to Section 409A as deferred compensation and (B) cash payments not subject to Section 409A; (iii) a pro rata reduction of (A) employee benefits that are subject to Section 409A as deferred compensation and (B) employee benefits not subject to Section 409A; and (iv) a pro rata cancellation of (A) accelerated vesting of equity awards; awards that are subject to Section 409A as deferred compensation and (ivB) reduction of employee benefits. equity awards not subject to Section 409A. In the event that acceleration of vesting of equity award compensation awards is to be reducedcancelled, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executivea Participant’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing A nationally recognized professional services firm selected by the Company, the Company’s independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to which the parties mutually agree (the “Firm”), whose ) will make any determination required under this Section 5. Such determinations will be made in writing by the Firm and any good faith determinations of the Firm will be conclusive and binding upon Executive Participant and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Participant and the Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 5. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 2 contracts
Samples: Confirmatory Employment Letter (Samsara Inc.), Confirmatory Employment Letter (Samsara Inc.)
Limitation on Payments. In the event that the severance and payments or other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s benefits under Section 3 will this Agreement shall be either:
either (a) delivered in full, or
or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or benefits constituting “parachute payments” is necessary so that benefits are delivered pursuant to a lesser extentthe foregoing provision, reduction will shall occur in the following order: order unless Executive elects in writing a different order (i) provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the parachute payment occurs): reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity stock awards; (iv) and reduction of employee benefits. In the event that If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awardsstock awards unless Executive elects in writing a different order for cancellation. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will 6.6 shall be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 56.6, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and Executive will furnish shall further to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this SectionSection 6.6. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 56.6.
Appears in 2 contracts
Samples: Executive Employment Agreement (Procera Networks Inc), Executive Employment Agreement (Procera Networks Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Code Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Code Section 4999 of the Code4999, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Code Section 4999 of the Code4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Code Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Code Section 4999 4999. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 4 will be made in writing by the Company’s independent public accountants immediately prior to Change of Control (the Code“Accountants”), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999. The Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash paymentsoutplacement benefits; (ii) reduction of severance and pro-rata bonus; cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awardsacceleration; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5COBRA continuation coverage.
Appears in 2 contracts
Samples: Severance and Change of Control Agreement (Netsuite Inc), Severance and Change of Control Agreement (Netsuite Inc)
Limitation on Payments. In (a) If the event that the severance and Change in Control Severance Benefits together with any other benefits provided for payment or benefit Employee would receive pursuant to a Change in this Agreement or otherwise payable to Executive Control (collectively, “Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Section 5sentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s benefits under Section 3 will such Payment shall be either:
equal to the Reduced Amount. The “Reduced Amount” shall be either (ax) delivered in full, or
(b) delivered as to such lesser extent which the largest portion of the Payment that would result in no portion of such benefits the Payment being subject to excise tax under Section 4999 the Excise Tax or (y) the largest portion, up to and including the total, of the CodePayment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the excise tax imposed by Section 4999Excise Tax (all computed at the highest applicable marginal rate), results in the receipt by Executive Employee’s receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the CodePayment maybe subject to the Excise Tax. If a reduction in severance and other payments or benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extentthe Payment equals the Reduced Amount, reduction will shall occur in the following order unless Employee elects in writing a different order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning acceleration of Code Section 280G), (iii) cancellation of accelerated vesting of equity awardsvesting; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will it shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Equity Awards unless Employee elects in writing a different order for cancellation.
(b) The Company may engage the accounting firm engaged by the Company and Executive otherwise agree for general audit purposes as of the day prior to the effective date of the Change in writing, any determination Control or another firm to perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such firm required under this Section 5 will to be made in writing hereunder.
(c) The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Employee and the Company within fifteen (15) calendar days after the date on which Employee’s right to a Payment is triggered (if requested at that time by Employee or the Company’s independent public accountants immediately prior to a Change of Control ) or such other person time as requested by Employee or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 2 contracts
Samples: Change in Control Severance Agreement (Ultra Clean Holdings, Inc.), Change in Control Severance Agreement (Ultra Clean Holdings Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 6 will be made in writing by the Company’s independent public accountants immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 56, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 56. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (1) reduction of the cash severance payments; (2) cancellation of accelerated vesting of equity awards; and (3) reduction of continued employee benefits. In the event that the accelerated vesting of equity awards is to be cancelled, such vesting acceleration will be cancelled in the reverse chronological order of the Executive’s equity awards’ grant dates.
Appears in 2 contracts
Samples: Change of Control Severance Agreement (Isilon Systems, Inc.), Change of Control Severance Agreement (Isilon Systems, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable or provided to Executive the Employee (ia) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (iib) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executivethe Employee’s severance benefits under Section 3 will hereunder shall be either:
(ai) delivered in full, or
(bii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company Corporation and Executive the Employee otherwise agree in writing, any determination required under this Section 5 will shall be made in writing in good faith by a nationally recognized accounting firm appointed by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree Corporation (the “FirmAccountants”). In the event that a reduction in benefits as described in clause (ii) above is required under this Section 5 of this Agreement:
(x) The phrase “stock options” as used in this Agreement will mean stock options, whose determination stock appreciation rights and similar awards for which the exercise price is at least equal to the fair market value of the shares underlying the award on the date of grant (the “Options”); and
(y) The phrase “restricted stock awards” as used in Section 5 of this Agreement will mean restricted stock, restricted stock units, performance shares, performance units, and other similar awards, excluding Options. In the event of a reduction in benefits hereunder, the reduction will occur in the following order: the vesting acceleration of stock options, then cash payments, then vesting acceleration of restricted stock awards, then Corporation-paid COBRA coverage, and then all other benefits. In the event that acceleration of vesting of stock options or restricted stock awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant (that is, the latest first) for the Employee’s stock options or restricted stock awards, as applicable. If two or more stock options or restricted stock awards are granted on the same day, the stock options or restricted stock awards, as applicable, will be conclusive and binding upon Executive and reduced on a pro-rata basis. Further, within the Companyorder of reduction set forth above, with regard to any reductions of each of cash payments, Corporation‑paid COBRA coverage, or any other benefits, the payment or benefit to be provided on the latest date following the occurrence of the event otherwise triggering the Excise Tax will be the first payment or benefit to be reduced. In no event will the Employee have any discretion with respect to the ordering of the reductions described above in this paragraph. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company Corporation and Executive will the Employee shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. In the event that the Corporation’s independent public accountants immediately prior to the Change of Control (as defined in this Agreement) are unable to make the determinations regarding parachute payments within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, and any final regulations and guidance thereunder (the “Code”), as described in Section 5 of this Agreement, then the Accountants (as defined in this Agreement) will mean a nationally recognized accounting or valuation firm selected by the Corporation. The Company will Corporation shall bear all costs and be responsible for the Firm may incur payment of any reasonable fees to the Accountants in connection with any calculations contemplated by this Section 5.
Appears in 2 contracts
Samples: Change of Control Agreement (Quantum Corp /De/), Change of Control Agreement (Quantum Corp /De/)
Limitation on Payments. In (a) Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Section 5sentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive’s benefits under Section 3 will be either:
after-tax proceeds: (aA) delivered payment in fullfull of the entire amount of the Payment (a “Full Payment”), or
or (bB) delivered as to such lesser extent which would result in no portion payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the CodeExcise Tax (a “Reduced Payment”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive’s receipt, on an after-tax basis, of the greatest greater amount of benefitsthe Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax.
(b) If a Reduced Payment is made pursuant to this Section 5, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in severance and other payments and/or benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i1) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awardsawards other than stock options; (iv3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefitsother benefits payable to Executive. In the event that acceleration of vesting of compensation from Executive’s equity award compensation awards is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant grant.
(c) The independent registered public accounting firm engaged by the Company as of Executive’s equity awardsthe day prior to the effective date of the Change in Control shall make all determinations required to be made under this Section 5. Unless If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the Change in Control, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder.
(d) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company’s . If the independent registered public accountants immediately prior accounting firm determines that no Excise Tax is payable with respect to a Change of Control Payment, either before or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning after the application of Sections 280G and 4999 of the Code. The Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will furnish be imposed with respect to such Payment. Any good faith determinations of the Firm such information accounting firm made hereunder shall be final, binding and documents as conclusive upon the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5and Executive.
Appears in 2 contracts
Samples: Employment Agreement (Nevro Corp), Employment Agreement (Nevro Corp)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards Equity Awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) ; cancellation of accelerated vesting of equity awardsEquity Awards; (iv) and reduction of employee benefits. In the event that acceleration of vesting of equity award Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awardsEquity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 2 contracts
Samples: Change of Control Severance Agreement (Linear Technology Corp /Ca/), Change of Control Severance Agreement (Linear Technology Corp /Ca/)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 58, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 6 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 8 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 58, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may incur in connection with any calculations contemplated by this Section 58.
Appears in 2 contracts
Samples: Executive Employment Agreement (Comscore, Inc.), Executive Employment Agreement (Comscore, Inc.)
Limitation on Payments. In (a) Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Section 5sentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive’s benefits under Section 3 will be either:
after-tax proceeds: (aA) delivered payment in fullfull of the entire amount of the Payment (a “Full Payment”), or
or (bB) delivered as to such lesser extent which would result in no portion payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the CodeExcise Tax (a “Reduced Payment”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive’s receipt, on an after-tax basis, of the greatest greater amount of benefitsthe Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax.
(b) If a Reduced Payment is made pursuant to this Section 5, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in severance and other payments and/or benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i1) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awardsawards other than stock options; (iv3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefitsother benefits payable to Executive. In the event that acceleration of vesting of compensation from Executive’s equity award compensation awards is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination grant.
(c) All determinations required to be made under this Section 5 will shall be made in writing by such adviser as may be selected by the Company, provided, that the adviser’s independent public accountants immediately prior to a Change determination shall be made based upon “substantial authority” within the meaning of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 6662 of the Code. The adviser shall provide its determination, together with detailed supporting calculations and documentation, to Executive and the Company and within fifteen (15) business days following the date of termination of Executive’s employment, if applicable, or such other time as requested by Executive will furnish (provided, that Executive reasonably believes that any of the Payments may be subject to the Firm Excise Tax) or the Company. All reasonable fees and expenses of the adviser in reaching such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs shall be borne solely by the Firm may incur in connection with any calculations contemplated by this Section 5Company.
Appears in 2 contracts
Samples: Employment Agreement (Spruce Biosciences, Inc.), Employment Agreement (Spruce Biosciences, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 511, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of 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. In no event shall the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 11 will be made in writing by the Company’s independent public accountants who are primarily used by the Company immediately prior to a the Change of Control Control, the Company’s legal counsel or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 511, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 11. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 511.
Appears in 2 contracts
Samples: Executive Employment Agreement (Sarepta Therapeutics, Inc.), Executive Employment Agreement (Avi Biopharma Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 522, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance and other benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser letter extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance and other benefits, notwithstanding that all or some portion of such severance and other benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awardsawards that vest, in whole or in part, based on the achievement of performance criteria, in the reverse order that such awards would have vested; (iv3) cancellation of accelerated vesting of equity awards that vest based solely on continued service, in the order of the percentage of the fair market value of such awards that constitutes a parachute payment (commencing with the largest percentage); and (4) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Notwithstanding the foregoing, to the extent the Company submits any payment or benefit payable to Executive under this Agreement or otherwise to the Company’s stockholders for approval in accordance with Treasury Regulation Section 1.280G-1 Q&A 7, the foregoing provisions shall not apply following such submission and such payments and benefits will be treated in accordance with the results of such vote, except that any reduction in, or waiver of, such payments or benefits required by such vote will be applied without any application of discretion by Executive and in the order prescribed by this Section 22. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 22 will be made in writing by the Company’s an independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree firm (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 522, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 22. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 522.
Appears in 2 contracts
Samples: Employment Agreement (Inogen Inc), Employment Agreement (Inogen Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement letter or otherwise payable to Executive you (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 517, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s your benefits under Section 3 will be either:
(a) a. delivered in full, or
(b) b. delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive you on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280GG of the Code), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s your equity awards. Unless the Company and Executive you otherwise agree in writing, any determination required under this Section 5 17 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive you and the Company. For purposes of making the calculations required by this Section 517, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive you will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 517.
Appears in 2 contracts
Samples: Employment Agreement (Nutanix, Inc.), Employment Agreement (Nutanix, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (ii) a pro rata reduction of (A) cash payments that are subject to Section 409A as deferred compensation and (B) cash payments not subject to Section 409A of the Code; (iii) cancellation a pro rata reduction of accelerated vesting of equity awards(A) employee benefits that are subject to Section 409A as deferred compensation and (B) employee benefits not subject to Section 409A; and (iv) reduction a pro rata cancellation of employee benefits. (A) accelerated vesting Equity Awards that are subject to Section 409A as deferred compensation and (B) Equity Awards not subject to Section 409A. In the event that acceleration of vesting of equity award compensation Equity Awards is to be reducedcancelled, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awardsEquity Awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 2 contracts
Samples: Change of Control and Severance Agreement (Altera Corp), Change of Control and Severance Agreement (Altera Corp)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 3(a) will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of 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. In no event shall the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this SectionSection 5. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5.
Appears in 2 contracts
Samples: Change of Control Severance Agreement (Infinera Corp), Change of Control Severance Agreement (Infinera Corp)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then ExecutiveEmployee’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), and (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse chronological order of the date of grant of ExecutiveEmployee’s equity awards. Unless the Company and Executive Employee otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive Employee and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive Employee will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5.
Appears in 1 contract
Samples: Change in Control and Severance Agreement (Endocyte Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Section 54, would be subject to the excise tax imposed by Section 4999 of the Code, then ExecutiveEmployee’s severance benefits under Section 3 Subsection 3(a) will be payable either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive Employee otherwise agree in writing, any determination required under this Section 5 4 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive Employee and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 54, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive Employee will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 54. If a reduction in payments or benefits constituting “parachute payments” is necessary so that they do not constitute “parachute payments,” reduction will occur in the following order: reduction of cash payments; reduction of employee benefits; cancellation of accelerated vesting of equity awards; cancellation of equity awards that are considered to be “contingent” upon the Change of Control transaction.
Appears in 1 contract
Samples: Change of Control Severance Agreement (Acclarent Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 56, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s such payments or benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction The Company and Executive agree to work together in severance and other benefits constituting “parachute payments” is necessary so that benefits good faith to consider reasonable actions which are delivered appropriate or desirable to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order avoid imposition of the date of grant of Executive’s equity awardsexcise tax imposed by Section 4999. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 6 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 56, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this SectionSection 6. The Company will bear all costs the Firm Accountants may incur in connection with any calculations contemplated by this Section 56. Any reduction in payments and/or benefits required by this Section 6 shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the order that results in the highest after-tax payment to the Executive after taking into account the excise tax, as determined by the Accountants; provided that in the event that there are multiple scenarios that result in the highest after-tax payment, then such reduction will occur in the reverse order of the date of grant for such equity awards (i.e., the vesting of the most recently granted stock awards will be reduced first). If two or more equity awards are granted on the same date, each equity award will be reduced on a pro-rata basis. In no event will Executive exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 6.
Appears in 1 contract
Samples: Change of Control and Severance Agreement (Ambarella Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; and (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event shall Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control nationally recognized accounting or such other person or entity to which the parties mutually agree valuation firm (the “Firm”)) reasonably agreed upon between the parties, whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs for payment of the Firm may incur Firm’s services in connection with any calculations contemplated by this Section 5.. Cyan Sev & CoC Agt 7
Appears in 1 contract
Samples: Severance and Change in Control Agreement (Cyan Inc)
Limitation on Payments. In Notwithstanding anything contained herein to the contrary, in no event shall the total compensation paid out upon the departure of the Executive be in excess of that considered by either the severance FDIC or the California Department of Financial Protection and Innovation to be safe and sound at the time of such payment, taking into consideration all applicable laws, regulations, or other benefits provided for in regulatory guidance. Any payments made to the Executive, pursuant to this Agreement or otherwise, are subject to and conditioned upon compliance with all applicable banking regulations, including, but not limited to, 12 U.S.C. Section 1828(k) and any regulations promulgated thereunder. The Executive agrees that should any payments that are made or benefits that are provided pursuant to this Agreement be considered unsafe or unsound or otherwise prohibited by applicable law, regulation or regulatory order, the Executive agrees that he/she shall return or otherwise reimburse the Company for the amount of such prohibited payments or benefits to the maximum extent required by such law, regulation or regulatory order. Without limiting the foregoing, the Executive agrees to promptly comply with any applicable rule or regulation which requires the return or reimbursement to the Company of any payments, benefits or other compensation, including, but not limited to, return or reimbursement in connection with any incentive compensation previously paid prior to the issuance of a financial restatement or defalcation, as required under the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, the Xxxxxxxx-Xxxxx Act of 2002, any regulations promulgated by any self-regulatory organization on which the Company’s common stock may then be listed, and/or any compensation “claw-back” policy previously adopted by the Company or the Bank. Notwithstanding any other provisions of this Agreement, if the Company’s principal tax advisor determines that the total amounts payable pursuant to this Agreement, together with other payments to which the Executive is entitled, would constitute an “excess parachute payment” (i) constitute “parachute payments” within the meaning of as defined in Section 280G of the Internal Revenue Code), as amended, then the total payment under section 1.A above (and (iiproportionally each monthly installment thereof) but for this Section 5, would shall be reduced to the largest amount which may be paid without any portion of such amount being subject to the excise tax imposed by Section 4999 of the Internal Revenue Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 1 contract
Samples: Severance Compensation Agreement (CVB Financial Corp)
Limitation on Payments. In the event that the severance and payments or other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s benefits under Section 3 will this Agreement shall be either:
either (a) delivered in full, or
or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other payments or benefits constituting “parachute payments” is necessary so that benefits are delivered pursuant to a lesser extentthe foregoing provision, reduction will shall occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity stock awards; (iv) reduction of employee benefits. In the event that If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity stock awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will 5.6 shall be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will shall be conclusive and binding upon Executive and the Company for all purposes and may be relied upon by the Company. For purposes of making the calculations required by this Section 55.6, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and 4999 of the Code. The Company and Executive will furnish shall further to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this SectionSection 5.6. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 55.6.
Appears in 1 contract
Samples: Executive Employment Agreement (Procera Networks Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s 's benefits under Section 3 and Section 4(a) respectively will be either:
(a) a. delivered in full, or
(b) or b. delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s 's equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s 's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may incur in connection with any calculations contemplated by this Section 5.
Appears in 1 contract
Samples: Change of Control Severance Agreement (Plantronics Inc /Ca/)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “"parachute payments” " within the meaning of Section 280G of the Code, Code and (ii) but for this Section 522, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s 's severance and other benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser letter extent which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, ,whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance and other benefits, notwithstanding that all or some portion of such severance and other benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “"parachute payments” " is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s 's equity awards. Notwithstanding the foregoing, to the extent the Company submits any payment or benefit payable to Executive under this Agreement or otherwise to the Company's stockholders for approval in accordance with Treasury Regulation Section l.280G- I Q&A 7, the foregoing provisions shall not apply following such submission and such payments and benefits will be treated in accordance with the results of such vote, except that any reduction in, or waiver of, such payments or benefits required by such vote will be applied without any application of discretion by Executive and in the order prescribed by this Section 22. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 22 will be made in writing by the Company’s an independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree firm (the “"Firm”"), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 522, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 22. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 522.
Appears in 1 contract
Samples: Employment Agreement (Inogen Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 510, would not be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of cash each of the severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s Executive s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 10 will be made in writing by the Company’s an independent public accountants firm immediately prior to a Change change of Control or such other person or entity to which the parties mutually agree control (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 510, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G 2800 and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents document as the Firm may reasonably request in order to make a determination under this SectionSection 10. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 510.
Appears in 1 contract
Samples: Employment Agreement (Intermedia Cloud Communications, Inc.)
Limitation on Payments. In the event that the severance cash severance, accelerated equity payouts and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 510, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s such severance benefits, accelerated equity payouts and/or other benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive Executive, on an after-tax basis, of the greatest amount of such severance benefits, accelerated equity award payouts and other benefits, notwithstanding that all or some portion of such severance benefits or such other items may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits and/or accelerated equity award payouts constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered and such payouts is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing A nationally recognized certified professional services firm selected by the Company, the Company’s independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to on which the parties mutually agree (the “Firm”), whose determination ) will perform the foregoing calculations related to the Excise Tax. The Company will bear all expenses with respect to the determinations by the Firm required to be conclusive and binding upon Executive and the Companymade hereunder. For purposes of making the calculations required by this Section 5Section, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company will bear all costs and Executive within 15 calendar days after the date on which Executive’s right to the severance benefits, accelerated equity award payouts or other payments is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the Firm may incur in connection with any calculations contemplated by this Section 5made hereunder will be final, binding, and conclusive upon the Company and Executive.
Appears in 1 contract
Samples: Chief Executive Officer Employment Agreement (Align Technology Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 59, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) a. delivered in full, or
(b) or b. delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing A nationally recognized certified professional services firm selected by the Company, the Company’s independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will ) shall perform the foregoing calculations related to the Excise Tax. The Company shall bear all expenses with respect to the determinations by the Firm required to be conclusive and binding upon Executive and the Companymade hereunder. For purposes of making the calculations required by this Section 5Section, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company will bear all costs and Executive within fifteen (15) calendar days after the date on which Executive’s right to the severance benefits or other payments is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the Firm may incur in connection with any calculations contemplated by this Section 5made hereunder shall be final, binding, and conclusive upon the Company and Executive.
Appears in 1 contract
Samples: Executive Employment Agreement (Aadi Bioscience, Inc.)
Limitation on Payments. In the event that the severance and other benefits any compensation provided for in this Consulting Agreement or otherwise payable to Executive Burger (i) constitute constitutes “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5Section, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 such compensation will be either:
(a) delivered Delivered in full, ; or
(b) delivered as Delivered to such lesser extent which that would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, Code whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive Burger on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or of some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered made in order to deliver compensation to a lesser extentextent in accordance with this Section, reduction will occur in the following order: (i) reduction of in cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), ; (iii) cancellation of accelerated vesting of equity awards; and (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of ExecutiveBurger’s equity awards. Unless the Company and Executive Burger otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive Burger and the Company. For purposes of making the calculations required by this Section 5calculations, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive Burger will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated required by this Section 5Section.
Appears in 1 contract
Samples: Consulting Agreement (Electro Scientific Industries Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “"parachute payments” " within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s 's benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “"parachute payments” " is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards Equity Awards granted “"contingent on a change in ownership or control” (" within the meaning of Code Section 280G), (iii) ; cancellation of accelerated vesting of equity awardsEquity Awards; (iv) and reduction of employee benefits. In the event that acceleration of vesting of equity award Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s 's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “"Firm”"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
Appears in 1 contract
Samples: Change of Control Severance Agreement (Analog Devices Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G 2800 of the Code, Code and (ii) but for this Section 510, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s 's severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of cash paymentsthe severance payments under Sections 8(a)(i) or 8(b)(i); (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant of Executive’s 's equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 10 will be made in writing by the Company’s an independent public accountants firm immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 510, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this SectionSection 10. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 510.
Appears in 1 contract
Samples: Employment Agreement (Telenav, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 512, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 8 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 12 will be made in writing by the Company’s independent public accountants immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 512, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 512.
Appears in 1 contract
Samples: Employment Agreement (Pacific Biosciences of California Inc)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event shall the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5.
Appears in 1 contract
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (collectively, "Benefits") (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 56(a)(i), would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 Benefits will be either:
(aA) delivered in full, or
(bB) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefitsBenefits, notwithstanding that all or some portion of such benefits Benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits the Benefits constituting “parachute payments” is necessary so that benefits are delivered no portion of such Benefits is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of cash paymentspayments for which the full amount is treated as a parachute payment; (ii2) cancellation of accelerated vesting (or, if necessary, payment) of cash awards granted “contingent on for which the full amount in not treated as a change in ownership or control” parachute payment; (within the meaning of Code Section 280G), (iii3) cancellation of accelerated vesting of equity awards; and (iv4) reduction of continued employee benefits. In selecting the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of awards (if any) for which vesting will be cancelled reduced under clause (3) of the preceding sentence, awards shall be selected in a manner that maximizes the after-tax aggregate amount of Benefits provided to Executive, provided that if (and only if) necessary in order to avoid the imposition of an additional tax under Section 409A of the Code, awards instead shall be selected in the reverse order of the date of grant grant. For the avoidance of Executive’s doubt, for purposes of measuring an equity awardscompensation award's value to Executive when performing the foregoing comparison between (A) and (B), such award's value shall equal the then aggregate fair market value of the vested shares underlying the award less any aggregate exercise price less applicable taxes. Also, if two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. In no event shall the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing the accounting firm engaged by the Company’s independent public accountants immediately Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is also serving as accountant or auditor for the individual, entity or group which will control the Company upon the occurrence of a Change of Control Control, the Company shall appoint a nationally recognized accounting firm other than the accounting firm engaged by the Company for general audit purposes to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty calendar days after the date on which such accounting firm has been engaged to make such determinations or such other person time as requested by the Company or entity Executive. If the accounting firm determines that no Excise Tax is payable with respect to which a Payment, it shall furnish the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will furnish be imposed with respect to such Payment. Any good faith determinations of the Firm such information accounting firm made hereunder shall be final, binding, and documents conclusive upon the Company and Executive. Notwithstanding the preceding, as expressly permitted by Q/A #32 of the Firm may reasonably request in order Code section 280G final regulations, with respect to make a determination under this Section. The Company will bear all costs the Firm may incur performing any present value calculations that are required in connection with any calculations contemplated by this Section 56(a)(i), the Parties affirmatively elect to utilize the Applicable Federal Rates that are in effect as of the Effective Date of the Second Amendment to this Agreement (the "April 2010 AFRs") and the accounting firm shall therefore use such April 2010 AFRs in its determinations and calculations.”
Appears in 1 contract
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 53, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits benefit under Section 3 1 and under any such other agreement (including any employment agreement or equity award agreement under the Company’s Amended and Restated 1998 Stock Option Plan, Company’s Second Amended and Restated 2005 Stock Option and Incentive Plan or the Company’s 2015 Equity Incentive Plan) will be either:
(a) a. delivered in full, or
(b) b. delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, Code as determined by the Firm whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iviii) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 3 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control the Termination Date or such other person or entity to which the parties Parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 53, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 53.
Appears in 1 contract
Samples: Executive Employment Agreement Addendum (Nextgen Healthcare, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 54, would be subject to the excise tax imposed by Section 4999 of the Code, then ExecutiveEmployee’s benefits under Section 3 will be either:
(a) a. delivered in full, or
(b) b. delivered as to such lesser extent which would result in no portion of such benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive Employee on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) and reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of ExecutiveEmployee’s equity awards. In no event shall Employee have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive Employee otherwise agree in writing, any determination required under this Section 5 4 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive Employee and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 54, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive Employee will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 54.
Appears in 1 contract
Samples: Change of Control and Severance Agreement (Gi Dynamics, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable or provided to Executive the Employee (ia) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (iib) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executivethe Employee’s severance benefits under Section 3 will hereunder shall be either:
(ai) delivered in full, or
(bii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the CodeExcise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax, results in the receipt by Executive the Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company Corporation and Executive the Employee otherwise agree in writing, any determination required under this Section 5 will shall be made in writing in good faith by a nationally recognized accounting firm appointed by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree Corporation (the “FirmAccountants”). In the event that a reduction in benefits as described in clause (ii) above is required under this Section 5 of this Agreement:
(x) The phrase “stock options” as used in this Agreement will mean stock options, whose determination stock appreciation rights and similar awards for which the exercise price is at least equal to the fair market value of the shares underlying the award on the date of grant (the “Options”); and
(y) The phrase “restricted stock awards” as used in Section 5 of this Agreement will mean restricted stock, restricted stock units, performance shares, performance units, and other similar awards, excluding Options. In the event of a reduction in benefits hereunder, the reduction will occur in the following order: the vesting acceleration of stock options, then cash payments, then vesting acceleration of restricted stock awards, then Corporation-paid COBRA coverage, and then all other benefits. In the event that acceleration of vesting of stock options or restricted stock awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant (that is, the latest first) for the Employee’s stock options or restricted stock awards, as applicable. If two or more stock options or restricted stock awards are granted on the same day, the stock options or restricted stock awards, as applicable, will be conclusive and binding upon Executive and reduced on a pro-rata basis. Further, within the Companyorder of reduction set forth above, with regard to any reductions of each of cash payments, Corporation-paid COBRA coverage, or any other benefits, the payment or benefit to be provided on the latest date following the occurrence of the event otherwise triggering the Excise Tax will be the first payment or benefit to be reduced. In no event will the Employee have any discretion with respect to the ordering of the reductions described above in this paragraph. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company Corporation and Executive will the Employee shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. In the event that the Corporation’s independent public accountants immediately prior to the Change of Control (as defined in this Agreement) are unable to make the determinations regarding parachute payments within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, and any final regulations and guidance thereunder (the “Code”), as described in Section 5 of this Agreement, then the Accountants (as defined in this Agreement) will mean a nationally recognized accounting or valuation firm selected by the Corporation. The Company will Corporation shall bear all costs and be responsible for the Firm may incur payment of any reasonable fees to the Accountants in connection with any calculations contemplated by this Section 5.
Appears in 1 contract
Limitation on Payments. In the event that any of the severance and other payments or benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Section 5IV.G, would be subject to the excise tax imposed by Section 4999 of the Code, then Executivethe Employee’s payments or benefits under Section 3 this Agreement or otherwise will be either:
(aA) delivered in full, or
(bB) delivered as to such lesser extent which would result in no portion of such payments or benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 49994999 of the Code, results in the receipt by Executive the Employee on an after-tax basis, basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments or benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive the Employee otherwise agree in writing, any determination required under this Section 5 IV.G will be made in writing by the Company’s independent public accountants immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree Date (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive the Employee and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5IV.G, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive the Employee will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. Section IV.G. The Company will bear all fees and costs payable to the Firm may incur Accountants in connection with any calculations contemplated by this Section 5IV.G. Any reduction in payments and/or benefits required by this Section IV.G shall occur in the following order: (1) reduction of cash payments, (2) reduction of equity acceleration (full-value awards first, then stock options), and (3) other benefits paid to the Employee. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the equity awards.
Appears in 1 contract
Limitation on Payments. In (a) Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, ”) and (ii) but for this Section 5sentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive’s benefits under Section 3 will be either:
after-tax proceeds: (aA) delivered payment in fullfull of the entire amount of the Payment (a “Full Payment”) or (B) payment of only a part of the Payment, or
(b) delivered as to such lesser extent which would result in no portion of such benefits so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the CodeExcise Tax (a “Reduced Payment”), whichever of the foregoing amounts, taking into account the applicable federal, state state, and local income taxes and the excise tax imposed by Section 4999Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive’s receipt, on an after-tax basis, of the greatest greater amount of benefitsthe Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax.
(b) If a Reduced Payment is made pursuant to this Section 5, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in severance and other payments and/or benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i1) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awardsawards other than stock options; (iv3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefitsother benefits payable to Executive. In the event that acceleration of vesting of compensation from Executive’s equity award compensation awards is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination grant.
(c) All determinations required to be made under this Section 5 will shall be made in writing by such adviser as may be selected by the Company; provided, that the adviser’s independent public accountants immediately prior to a Change determination shall be made based upon “substantial authority” within the meaning of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 6662 of the Code. The adviser shall provide its determination, together with detailed supporting calculations and documentation, to Executive and the Company and within thirty (30) business days following the date of termination of Executive's employment, if applicable, or such other time as requested by Executive will furnish (provided, that Executive reasonably believes that any of the Payments may be subject to the Firm Excise Tax) or the Company. All reasonable fees and expenses of the adviser in reaching such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs shall be borne solely by the Firm may incur in connection with any calculations contemplated by this Section 5Company.
Appears in 1 contract
Samples: Employment Agreement (Kubient, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “"parachute payments” " within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s 's severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “"parachute payments” " is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “"contingent on a change in ownership or control” " (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s 's equity awards. Unless the Company and Executive otherwise agree in writing, any determination dete1mination required under this Section 5 will be made in writing by the Company’s 's independent public accountants immediately prior to a the Change of in Control or such other person or entity to which the parties mutually agree (the “Firm”"Accountants"), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5.
Appears in 1 contract
Samples: Change in Control Severance Agreement (Gigamon Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this Section 510, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 3 will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting “parachute payments” is necessary so that no portion of such severance benefits are delivered is subject to a lesser extentthe excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i1) reduction of the cash severance payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awards; and (iv3) reduction of continued employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing A nationally recognized certified professional services firm selected by the Company, the Company’s independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will ) shall perform the foregoing calculations related to the Excise Tax. The Company shall bear all expenses with respect to the determinations by the Firm required to be conclusive and binding upon Executive and the Companymade hereunder. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company will bear all costs and Executive within 15 calendar days after the date on which Executive’s right to the severance benefits or other payments is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the Firm may incur in connection with any calculations contemplated by this Section 5made hereunder shall be final, binding, and conclusive upon the Company and Executive.
Appears in 1 contract
Limitation on Payments. In (a) Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Section 5sentence, would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive’s benefits under Section 3 will be either:
after-tax proceeds: (aA) delivered payment in fullfull of the entire amount of the Payment (a “Full Payment”), or
or (bB) delivered as to such lesser extent which would result in no portion payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the CodeExcise Tax (a “Reduced Payment”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive’s receipt, on an after-tax basis, of the greatest greater amount of benefitsthe Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax.
(b) If a Reduced Payment is made pursuant to this Section 5, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in severance and other payments and/or benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i1) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii2) cancellation of accelerated vesting of equity awardsawards other than stock options; (iv3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefitsother benefits payable to Executive. In the event that acceleration of vesting of compensation from Executive’s equity award compensation awards is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination grant.
(c) All determinations required to be made under this Section 5 will shall be made in writing by such adviser as may he selected by the Company; provided, that the adviser’s independent public accountants immediately prior to a Change determination shall be made based upon “substantial authority” within the meaning of Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 6662 of the Code. The adviser shall provide its determination, together with detailed supporting calculations and documentation, to Executive and the Company and within fifteen (15) business days following the date of termination of Executive’s employment, if applicable, or such other time as requested by Executive will furnish (provided, that Executive reasonably believes that any of the Payments may be subject to the Firm Excise Tax) or the Company. All reasonable fees and expenses of the adviser in reaching such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs shall be borne solely by the Firm may incur in connection with any calculations contemplated by this Section 5Company.
Appears in 1 contract
Samples: Employment Agreement (Kubient, Inc.)
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s benefits under Section 3 and Section 4(a) respectively will be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) order reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), (iii) cancellation of accelerated vesting of equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled canceled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “FirmAccountants”), whose determination will be conclusive and binding upon Executive and the CompanyCompany for all purposes. For purposes of making the calculations required by this Section 5, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may incur in connection with any calculations contemplated by this Section 5.
Appears in 1 contract
Samples: Executive Severance Agreement (Plantronics Inc /Ca/)