Limitation on Severance Payments. (a) Notwithstanding anything to the contrary contained in this Agreement, in the event that any Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or otherwise in connection with a Change in Control (“Total Payments”) would be subject to any Excise Tax, then the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code Section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code Section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied by the Base Amount. For this purpose, cash Severance Payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zero). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2).
(b) For purposes of this Section 3.03, the determination of whether any portion of the Total Payments would be subject to an Excise Tax will be made by an Accounting Firm selected by the Company and reasonably acceptable to the Executive. For purposes of that determination, the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Accounting Firm in accordance with the principles of Section 280G(d)(3) and (4).
Limitation on Severance Payments. Notwithstanding the foregoing, any severance payment and, if applicable, the value of any option acceleration and any other benefits payable hereunder shall be reduced by such amount as is necessary, in the opinion of tax counsel or other appropriate tax advisor selected in good faith by the Corporation, so that no portion of the foregoing will be subject to excise taxes for an “excess parachute payment” under Internal Revenue Code Sections 280G and 4999.
Limitation on Severance Payments. The payment contemplated under Subsection 8(d)(ii) of the Agreement shall only be payable if Executive experiences a “separation from service,” as that term is used in Section 409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”). Whether a separation from service takes place is determined in accordance with the requirements of Internal Revenue Code Section 409A and related Treasury guidance and regulations based on the facts and circumstances surrounding the termination of Executive’s employment and whether Employer and Executive intended for Executive to provide significant services following such termination. Executive’s employment relationship will be treated as continuing intact while Executive is on military leave, sick leave, or other bona fide leave of absence if the period of such leave of absence does not exceed six months, or if longer, so long as Executive’s right to reemployment by Employer is provided either by statute or by contract. If the period of leave exceeds six (6) months and there is no right to reemployment, a separation from service will be deemed to have occurred as of the first date immediately following such six-month period.
Limitation on Severance Payments. If the vesting of any options or other awards granted to Executive under any incentive plan upon a change in control event (as defined under the Company's 1999 Stock Incentive Plan) together with all other payments and the value of any benefit received or to be received by Executive would result in all or a portion of such payments to be subject to excise tax under Section 4999 of the Internal Revenue Code (the "Code"), then Executive's payments will be either (a) the full payments or (b) such lesser amount that would result in no portion of the 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 employment taxes, income taxes, and the excise tax imposed by Section 4999 of the Code, results in the receipt by Executive, on an after-tax basis, of the greatest amount of the payments notwithstanding that all or some portion of the payments may be taxable under Section 4999 of the Code. Executive will be entitled to receive the foregoing full payments, however, only if the excess of (c) the "parachute payments" as defined in Section 280G(b)(2) of the Code, over (d) 2.99 times Executive's "base amount" as defined in Section 280G(b)(3) of the Code exceeds the sum of (x) the greater of (i) $100,000 or (ii) ten (10) percent of the payments under this Agreement plus (y) the excise tax imposed under Section 4999 of the Code, plus (z) the applicable federal, state, and local employment taxes and income taxes imposed on the excess of (i) the "parachute payments" as defined in Section 280G(b)(2) of the Code, over (ii) 2.99 times Executive's -4- 5 "base amount" as defined in Section 280G(b)(3) of the Code. All determinations required to be made under this Section will be made by any nationally recognized accounting firm that is the Company's outside auditor at the time of such determination (the "ACCOUNTING FIRM"). The Company will cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Executive. Notice must be given to the Accounting Firm within fifteen (15) business days after an event entitling Executive to a payment under this Agreement. All fees and expenses of the Accounting Firm will be borne solely by the Company. The Accounting Firm's determinations must be made with substantial authority (within the meaning of Section 6662 of the Code).
Limitation on Severance Payments. 1. If the Contract is terminated pursuant to sub-section A (mutual agreement) or sub-section B (for cause), the Superintendent shall be entitled to no additional salary or benefits beyond the termination date established by the Board.
2. If the Contract is terminated pursuant to sub-section C (unilateral termination), the Superintendent shall be entitled to additional salary and/or health benefits as provided in that sub-section except as follows:
a. Both the salary and health benefits owing shall be reduced by any amounts of monetary compensation (other than reimbursement of expenses) and health benefits contributions the Superintendent earns for services rendered in other employment in an administrative position in the public or private employment in the field of education, or as an educational consultant, during the period of severance payments, or if a lump sum payment is made, during the number of months the lump sum payment covered. The Superintendent agrees to notify the District in writing of her acceptance of any such employment including evidence of the amount of monetary compensation and employer health benefits contribution within seven (7) days of acceptance of employment. Failure to comply constitutes a material breach of this Contract resulting in termination of all future severance payments.
b. If the District believes, and subsequently confirms, pursuant to independent audit, that the Superintendent has engaged in fraud, misappropriation of funds, or other illegal fiscal practices, the District may not provide a cash or non-cash settlement to the Superintendent in an amount greater than her monthly salary multiplied by zero (0) to six (6). The actual amount of the cash settlement shall be determined by a hearing officer after a hearing (Government Code, § 53260, subd. (b)).
3. If the Contract is terminated pursuant to sub-section D (incapacity), the Superintendent shall be entitled to additional health benefits as provided in that sub-section.
4. If the Superintendent is convicted of any crime involving abuse of her position, she shall reimburse the District for the full amount of any cash settlement provided by the Board as part of a termination agreement (Government Code, § 53243.2).
Limitation on Severance Payments. (a) Notwithstanding anything in this Agreement to the contrary, any "parachute payments" to be made to or for the benefit of the Employee, whether pursuant to this Agreement or otherwise, shall be modified to the extent necessary so that the requirements of either paragraph (1) or (2) below are satisfied:
(1) the aggregate "present value" of all "parachute payments" payable to or for the benefit of the Employee, whether pursuant to this Agreement or otherwise, shall be less than three times the Employee's "base amount"; or
Limitation on Severance Payments. (a) Notwithstanding any provision of this Agreement, if any portion of the severance payments under this Article V or other payment under this Agreement together with any other payments or compensation which Employee has a right to receive from the Corporation or its affiliates (in the aggregate, “Total Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and, but for this Section 5.9, would be subject to excise tax imposed by Section 4999 of the Code, the Total Payments shall be reduced to the largest amount as will result in no portion of the severance payment being subject to the excise tax imposed by Section 4999 of the Code.
(b) If a reduction is required pursuant to Section 5.9(a), the Total Payments shall be reduced or eliminated by applying the following principles, in order: (1) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and
Limitation on Severance Payments. (a) Notwithstanding anything to the contrary set forth herein, if any part of the Severance Payments, taken in combination with any other benefits payable to Brown pursuant to this Agreement (collectively, the "SEPARATION PAYMXXXX") would, if paid, constitute a "parachute payment" under Section 280G of the Internal Revenue Code of 1986, as amended (the "CODE"), then such Separation Payments shall be payable to Brown only if the value of the Separation Payments, less the amount xx xxy excise taxes payable under Code Section 4999, and any similar or comparable taxes due in connection with such Separation Payments, is greater than the highest amount not constituting a "parachute payment" that could be paid to Brown in connection with this Agreement (the "ALTERNATIVE PAYMENT"); xxxxrwise, only the Alternative Payment shall be payable to Brown. For purposes of this Section 3, the value of all payments or xxxxxhetical payments to Brown, including, without limitation, the Separation Payments, shall xx xetermined in accordance with Code Section 280G(d)(4) and any regulations issued thereunder.
(b) The determination of the operation of Section 3.3, and of any reduction in the Severance Payments necessary as a result thereof, shall be made by Brown upon the reasonable advice of Brown's legal counsel or accountxxx; provided, however, that should xxx Xxxernal Revenue Service determine at any time that any of the Separation Payments constitute a "parachute payment," then Brown agrees that he shall repay to the Company an amount sufficient xx xhat time to prevent any of such Separation Payments from constituting a "parachute payment." In any case in which the Separation Payments are reduced or not provided to Brown on account of the operation of this Section 3.3, Brown shall sxxxxx how the Separation Payments are to be reduced or xxx xrovided.
(c) If the Company shall fail to pay or provide at any time any benefits under this Agreement or under any benefit plan, agreement or arrangement established, agreed to or contracted for by the Company for the benefit of or with Brown, Brown shall be entitled to consult with independent counsel, xxx xhe Xxxxany shall pay the reasonable fees and expenses of such counsel for Brown in advising him in connection therewith or in bringing any proxxxxxngs, or in defending any proceedings, involving the Brown's rights under this Agreement, such right to reimbursement to xx xxxxdiate upon the presentment by Brown of written billings of suc...
Limitation on Severance Payments. Notwithstanding any provision of this Agreement or any other agreement of the parties, if the severance payment or payments under this Agreement, either alone or together with other payments which the Executive has the right to receive from the Company, would constitute a "parachute payment" (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") or any successor provision, such lump sum severance payment shall be reduced to the largest amount as will result in no portion of the lump sum severance payment under this Agreement being subject to the excise tax imposed by Section 4999 of the Code.
Limitation on Severance Payments. In the event that the severance payments and other benefits provided for in this Amendment or otherwise payable or provided to the 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 2 would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision thereto (the “Excise Tax”), then the Executive’s severance payments and benefits provided for hereunder shall be either (i) delivered in full pursuant to the terms of this Amendment or (ii) delivered as to such lesser extent which would result in no portion of such severance payments and other benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive, on an after-tax basis, of the greatest amount of severance payments and benefits provided for hereunder, notwithstanding that all or some portion of such severance payments and benefits may be subject to the Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 2 shall be made by the Company’s accountants prior to a “change in ownership or control” (as such terms are defined in Section 280G of the Code), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes.
